Article 9 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of religion and to manifest this religion. It also explains that this should only be subjected to limitations in the interests of public safety or protection of public order, health, morals or the rights and freedoms or others.
This case concerned a nurse who worked in a pre-operative assessment role. She was a committed Christian and often took the opportunity to talk to patients about her religion. Comments ranged from asking a patient ‘what they thought Easter meant’ to informing another patient they would have a better chance of surviving cancer surgery if they prayed.
Following complaints from both patients and staff the ward matron spoke to the nurse about the inappropriateness of her actions. Although the nurse agreed not to speak about religion to patients anymore unless they asked her to, two further complaints were made that the nurse was continuing to preach at patients and was making them feel uncomfortable.
In response, the nurse was invited to an investigation meeting, where she admitted that she sometimes did initiate discussions about religion. She outlined that she believed this was a permissible part of the pre-operation process but did agree that she had not followed reasonable management instructions. A disciplinary hearing was later held and a decision was made to dismiss the Nurse on three grounds:
- that she had failed to follow a reasonable management instruction
- that she had acted inappropriately in discussing the topic of religion with patients
- that as a result of the first two grounds, she had breached the Nursing and Midwifery Council (NMC) Code in expressing her personal beliefs inappropriately.
Her appeal against this decision was heard by the Director of Nursing of Quality, who dismissed it. She later brought a claim to the employment tribunal (ET) for unfair dismissal, arguing that the Nursing and Midwifery Code must be interpreted in a way that is compatible with Article 9 of the ECHR.
ET AND EAT
The ET dismissed her claim. They outlined that the nurse had been aware her conduct was inappropriate and the actions of the Trust amounted to a fair and reasonable procedure. In forming their decision, the tribunal referred to the decision in Chondol v Liverpool City Council, which illustrated the difference between proselytising beliefs (attempting to convert someone) and manifesting them. The Trust had only asked the nurse not to proselytise, meaning Article 9 was not applicable to this case.
The nurse appealed this decision to the Employment Appeal Tribunal (EAT) who refused to hear the appeal, finding it had no reasonable grounds for success. In response, the nurse appealed against this refusal to the Court of Appeal. She argued that the EAT had failed to distinguish between true evangelism (the spreading of Christian gospel by public preaching) and improper proselytism.
COURT OF APPEAL
The Court of Appeal unanimously dismissed her appeal. They found that the nurse had acted inappropriately by proselytising to patients and by failing to follow a lawful management order not to do this. In forming their decision, the Court outlined that the Trust had not imposed a blanket ban on religious speech and had conducted a fair procedure throughout her dismissal. The decision to dismiss her had therefore fallen within the band of reasonable responses open to them.
This case does seem to confirm that organisations can lawfully draw a line between the manifestation of a belief and the way in which the employee manifests it, however this distinction can be difficult to draw. Organisations should therefore be aware of employees expressing personal opinions on their religious or philosophical beliefs in the workplace and the potential issues that can arise.
They should also be mindful that religion or philosophical belief is a protected characteristic under discrimination law. An investigation into expressions of this religion and belief should therefore always be approached consistently. It should also clearly be specified what conduct the organisation wishes to discipline for.