Article 9 of the ECHR, which is one of “the Convention rights” set out in Sch. 1 to the Human Rights Act 1998 (“HRA”), provides that:
“(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.
In this recent case, Kuteh v Dartford and Gravesham NHS Trust  EWCA Civ 818, the Court of Appeal looked at the limits of such freedom.
What was it about?
The Claimant in this case accepted that she had, on at least some occasions, initiated conversations with patients about religion. After complaints were received from patients the Claimant gave an assurance to her manager that she would not initiate such discussions in the future. Despite that assurance, given in response to this management instruction, the Claimant continued to do so. The Respondent conducted an investigation and then held a disciplinary hearing at which she was dismissed. The Claimant appealed and her appeal was not upheld. The Claimant brought a claim of unfair dismissal.
The Employment Tribunal dismissed her claim of unfair dismissal. She appealed to the Employment Appeal Tribunal but her appeal was sifted out after a Rule 3(10) hearing in front of Choudhury J. Having found no error in respect of the finding that the dismissal was fair he went onto say this about the application of Article 9:
“… In substance it [the Employment Tribunal] found that Article 9 had not been breached in this case: paras. 9-10. Further, the distinction referred to in Chondol between manifesting one’s belief and improper proselytisation of beliefs was one to which the ET was entitled to have regard”.
What did the Court of Appeal think?
In a judgment, with which the other two Lord Justices agreed, Lord Justice Singh rejected the appeal. He reviewed the authorities on the application of Article 9 in private law situations.
Key to his decision was the statement made by Underhill P in Chondol v Liverpool City Council UKEAT/0298/08 @ para 23:
“… That distinction between, on the one hand the appellant’s religious belief as such and, on the other, the inappropriate promotion of that belief is entirely valid in principle (though of course in any case in which such a distinction is relied on it will be necessary to be clear that it reflects the employer’s true reason). …”
Singh LJ rejected the submission made on behalf of the Claimant that this led to a ‘blanket ban’ on religious speech. What was considered to be inappropriate in this case was for the Claimant to initiate discussions about religion and for her to disobey a lawful instruction given to her by management. Having clearly done this it was open to find she was fairly dismissed.
What can we take away?
Tribunals and Courts have established that there is a distinction to be drawn between the manifestation of an employee’s religious beliefs and improper proselytisation of those beliefs in the workplace.
The employer in this case approached the matter appropriately: Identified that initiating such discussions was not acceptable; made it clear to the employee that this had to cease; acted when the employee breached instruction.