Kuteh v Dartford and Gravesham NHS Trust

Hearing date: 28 March 2019

Approved Judgment

Introduction

This is an appeal from a decision of the Employment Appeal Tribunal (“EAT”), under Rule 3(10) of the EAT Rules 1993. The EAT considered that the grounds for an appeal to it were unarguable and so dismissed the Claimant's appeal from a decision of the Employment Tribunal (“ET”) rejecting her claim that she had been unfairly dismissed. (For ease of exposition I will refer to the parties as Claimant and Respondent, as they were before the ET).

The Claimant, who was a nurse employed by the Respondent, was dismissed from her role for gross misconduct as a result of her initiating inappropriate conversations about religion with patients.

Permission to appeal to this Court was granted by Bean LJ on 14 August 2018 on two grounds only, which he considered raised issues of public interest which justified consideration by this Court; permission to appeal on all other grounds was refused.

Factual and Procedural Background

The Claimant was born on 14 September 1968. She is a committed Christian. On 1 April 2007, the Claimant commenced employment with the Respondent as a registered nurse. She worked as a Band 5 Junior Sister in the Intensive Therapy Unit (“ITU”).

In November 2015, the Claimant was disciplined for a medication error, and she was given a final formal warning for a period of 24 months and transferred to work in a pre-operative assessment role.

In this role, the Claimant was responsible for carrying out between six and twelve assessments per day of patients who were due to undergo surgery in the near future. It was not in dispute that those patients would be worried, as well as possibly suffering from stress, and could potentially be vulnerable.

The Claimant used a pro forma document to carry out these assessments. There was a dispute before the ET as to which form the Claimant used with patients, but Employment Judge (“EJ”) Kurrein determined that there was no material difference between the two. The important feature of these forms is that they asked about the patient's religion. The ET found that the forms required the Claimant to make a simple enquiry as to a patient's religion and to note the response. It did not open the door to further religious discussion.

In March and April 2016, staff in the Claimant's Department informed the Sister, Ms Putland, that patients had been complaining to them that, when they were undergoing assessments with the Claimant, she had raised matters of religion with them. Ms Putland made notes of these matters contemporaneously with the events under four headings.

The first, entitled “March 2016 complaints to HCA [healthcare assistant] Kim Auty”, related to two patients. The first patient complained that she had been asked “what she thought Easter was about”, and, anticipating where the conversation was going, the patient asked the Claimant to stop “because [she] wasn't there to talk about religion”. The patient was described as “cross” and was told the Sister would be informed. The second patient told Ms Auty that the Claimant had asked him about his faith and what he thought being a Christian meant. He also stated that he did not wish to make a formal complaint, but he had felt awkward.

The second, entitled “April 2016”, described a complaint being made to a RGN (registered nurse) relating to one patient, about to undergo major bowel surgery for cancer, who was told that if he prayed to God he would have a better chance of survival.

The third, entitled “5 April 2016”, involved a complaint being made to a HCA by a patient that the Claimant had spent more time talking about religion than doing the assessment.

The fourth, entitled “7 April 2016”, was a note made of a request by a patient that she should not see the Claimant as she “didn't like preaching”.

The Claimant gave evidence before the ET that she would on occasion bring up religion with people “if that seemed an appropriate and helpful thing to say, in the light of a particular patient's demeanour and their apparent willingness to discuss religion”.

On 11 April 2016 the Matron, Ms Suki Gill, spoke to the Claimant to express her concern that the Claimant had been having unwanted religious discussions with patients whom she was assessing. Ms Gill confirmed the details of their discussion in a letter the next day, in the following terms:

“Yesterday I had a conversation of concern with you in regards to discussions which you have had with a number of pre-operative patients. This incidence [ sic] was brought to my attention via another member of staff who stated that you were discussing at length views about certain religions. A number of patients were offended that you spent a fair amount of the allocated pre-assessment time on the subject.

I stated that it was not appropriate to discuss religious views, although I accept that a small part of the assessment may involve some religious discussion …

After the discussion you gave me the assurance that you will not engage on the topic of religion unless a patient asked you to”.

Subsequently, Ms Putland noted two further matters of concern. The first, entitled “16 May 2016”, involved a patient complaining that the Claimant had given her a bible and said that she would pray for her. The patient then returned the bible to another member of staff. The second, entitled “31 May 2016”, involved a patient complaining that the Claimant was preaching at her and made her feel uncomfortable.

On 10 June 2016 Ms Gill sent the Claimant home and informed her that she should attend a meeting the following Monday at which she might be accompanied by a colleague or friend. That meeting took place on 13 June 2016 with Ms Costello, the General Manager. During this meeting, the Claimant was suspended from her duties, and this was confirmed in a letter from Ms Costello of the same date in which the Claimant was informed that the allegations to be investigated were:

(1) Repeated misconduct in that she failed to follow a reasonable management instruction that was discussed with her on 11 April 2016.

(2) Inappropriate behaviour/conduct that involved unwanted discussions on the topic of religion which resulted in verbal complaints from patients (on 16 May, 31 May and 3 June 2016).

(3) Breach of para. 20.7 of the Nursing and Midwifery Council (“NMC”) Code in relation to making sure that she did not express her personal beliefs (including political, religious or moral beliefs) to people in an inappropriate way.

On 20 June 2016, the Complaints Department noted a call from a patient being treated for cancer concerning his assessment by the Claimant on 3 June 2016. He had replied “open minded” to the question on the form concerning religion and alleged the Claimant had told him that the only way he could get to the Lord was through Jesus; told him she would give him her bible if he did not have one; gripped his hand tightly and said a prayer that was very intense and went “on and on”; and asked him to sing Psalm 23, after which he was so astounded that he had sung the first verse with her. He described the encounter as “very bizarre” and “like a Monty Python skit”. (See para. 28 of the ET judgment).

Also on 20 June 2016, the appointed investigator, Ms Shephard, wrote to the Claimant to invite her to an investigation meeting on 30 June 2016. During the course of that meeting, the Claimant explained her actions as forming a permissible part of the pre-operation process, and while she did not deny that she had had discussions about religion, she stated that she did not always initiate them. I would note that the clear inference from that is that the Claimant admitted that sometimes she did initiate discussions about religion.

The Claimant told Ms Costello that she would speak to patients about religion, for example if someone said they were not religious, she would ask “why not?”, or if someone stated that they were Christian, she would comment on this. She also said that in addition she would query it if a patient said they did not believe in God. She accepted that she should have kept her thoughts to herself and she could see how her actions could cause offence. She admitted that she did not follow reasonable management instructions, and that she had given a patient a bible.

The Investigation Report was completed on 22 July 2016. It concluded that there was evidence for a case to go to a disciplinary hearing.

The ET considered that Mrs Sarah Collins, who conducted that hearing with the assistance of her HR manager, gave considerable thought and care to the issues both during the hearing and afterwards. Mrs Collins upheld each of the three allegations made against the Claimant. First, in relation to the alleged failure to follow a management instruction, Mrs Collins wrote that, since the Claimant had continued to have inappropriate religious discussions, with no evidence of any change of behaviour after the instruction of 11 April 2016, this allegation was upheld. The second allegation, concerning inappropriate conduct, was upheld for the same reasons (since there had been repeated incidents and there had been no change in behaviour). The third allegation, concerning the breach of the NMC Code, was upheld in light of the fact that the first two allegations were made out.

Mrs Collins went on to consider the issue...