Background
Religion and belief is one of the protected characteristics in the Equality Act 2010, and as such taking formal action (such as dismissal) against an employee because of their religion or belief could give rise to claims, such as unfair dismissal and/or discrimination.
However, adhering to a set of beliefs, be they religious or otherwise (e.g. environmentalism), does not give employees carte blanche to act however they see fit because of those beliefs. Employers in the past have successfully defended claims where the employee has acted unreasonably in the manifestation of their beliefs, an example being the Christian relationship counsellor who was fairly dismissed for refusing to counsel gay couples.
In these circumstances, the reason for the dismissal is generally not because the employee followed particular beliefs, but because of the way that the employee has acted in expressing those beliefs. That distinction has been made again in two recent cases.
Kuteh v Dartford & Gravesham NHS Trust
The first case involves Ms Kuteh, a Christian nurse who assessed patients before surgery, part of which involved asking patients about their religious beliefs.
A number of patients raised complaints that Ms Kuteh had begun discussing religion with them without being asked, and after an informal warning from her manager on the issue Ms Kuteh agreed that she would no longer do so.
However, not long after that warning was given, further complaints were made, including one patient who stated that Ms Kuteh had given them a bible and said that she would say a prayer for them. Another stated that that Ms Kuteh asked them to sing a psalm with her, likening the situation to a Monty Python sketch.
Following an investigation and disciplinary hearing, Ms Kuteh was dismissed for gross misconduct, because she had:
- failed to follow a reasonable management instruction to stop discussing religion with patients;
- behaved inappropriately by having unwanted discussions with patients about religion; and
- acted in breach of paragraph 20.7 of the Nursing and Midwifery Council Code in relation to not expressing personal beliefs (including political, religious or moral) in an inappropriate way.
Ms Kuteh appealed unsuccessfully and then claimed unfair dismissal.
The Employment Tribunal (ET) dismissed her claim as it found that she had been dismissed for proselytising her beliefs, which was not an appropriate manifestation of them. Her appeal to the Employment Appeal Tribunal (EAT) was dismissed, and she then appealed to the Court of Appeal (CA).
The CA dismissed her appeal. The judge stated that improper proselytism was not protected in law, and in any event Ms Kuteh had been given a previous warning about her conduct that was ignored, despite her promise not to repeat the conduct. Her refusal to comply with a reasonable instruction made her dismissal all the more reasonable.
Page v NHS Trust Development Authority
In this case, Mr Page was a Christian non-executive director of Kent and Medway NHS Trust (the Trust), and until 2016 was a lay magistrate. The Trust was overseen by the NHS Trust Development Authority (NTDA). In 2014 he was reprimanded by the Lord Chancellor and Lord Chief Justice for allowing his religious beliefs to influence his decision in a same-sex adoption case.
Following the reprimand, Mr Page gave interviews to a range of media outlets, stating that it was against a child’s interests to be adopted by anyone other than an opposite-sex couple, and that it was ‘not normal’ for a single person or same-sex couple to adopt. In at least one interview a connection was made between Mr Page and his work for the Trust.
Following the interview, the Trust informed Mr Page of the negative impact that his appearances could have on the Trust and its commitment to equality for the LGBT community. He was also told that his failure to inform the Trust of his appearances was unacceptable.
Despite Mr Page agreeing to comply with the Trust’s policy on equality, he continued to air his views in the media, which resulted in him being removed as a magistrate by the Lord Chancellor, who stated that Mr Page was making it clear that he was biased against same-sex adoption.
Undeterred, Mr Page then appeared on national television to repeat his views on same-sex adoption. For additional flavour he also added that he was against same-sex marriage and homosexuality in general. The Trust did not know about that appearance until afterward, and referred him to the NTDA, which terminated his directorship of the Trust.
Mr Page then raised various claims of religious discrimination. In the ET, he stated that he intended to continue espousing his views to the press, and that he did not take into account the effect that this might have on others, including the staff or patients of the Trust.
The ET found that the Trust terminated the directorship not because of Mr Page’s beliefs, but because he continued to appear in the press and on television, with an impact on the Trust’s employees and patients, without informing the Trust despite promising to do so. As such, the ET dismissed all the discrimination claims.
Mr Page’s appeal was recently heard by the EAT, which dismissed the appeal.
Interestingly, the belief that Mr Page sought to be protected by the law was his belief in relation to the best interests of the child in adoption. However, the ET hinted that it would not have protected his more general beliefs in relation to homosexuality being wrong, as that belief would not be worthy of respect in a democratic society. That may be an argument featured in future cases, so watch this space.
What does this mean?
These cases do not limit or amend the protections afforded to religion and belief, but they do give a helpful insight as to how employees are allowed to behave when manifesting their beliefs.
Forcing religious views on others or publicly declaring those views to the detriment of an employer could give grounds for a dismissal than is neither unfair nor discriminatory, particularly where (as in these cases) the employer has given reasonable instructions not to do so.
Of course, every case is different, so these cases should not be read as allowing employers to impose any and all limits on religious expression. A balancing act has to be struck between the rights of the employee to express themselves and the work and values of the employer.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.