Élise Rouméas uses a recent court case involving an NHS nurse being dismissed for proselytising religious views to explain why the matter could have been handled differently. Specifically, she argues that cases such as this illustrate how alternative dispute resolution ought to be seen as a desirable complement to the rule of law rather than a cheaper alternative.
In 2016, Sarah Kuteh, a nurse at the NHS, was dismissed for ‘gross misconduct’. She was found guilty of inappropriate proselytising. While conducting patient assessments, she initiated conversations about faith, gave a Bible, and prayed. She persisted in sharing her beliefs in spite of patient complaints as well as warnings from her management. In May 2019, a Court of Appeal confirmed that Kuteh had been fairly dismissed.
In contesting her dismissal, Kuteh claimed that evangelising was part of her right to religious freedom. Article 9 of the European Convention on Human Rights (ECHR) protects the right to manifest one’s religion or belief. Kuteh argued that she didn’t engage in wrongful proselytising, but rather freely exercised her protected right to manifest her belief — why would it be so wrong to share words of hope with those she cared for?
It is hard not to feel for Kuteh as she sheds tears in shock of her dismissal and the long legal battle that ensued. Mother of two, she found herself in a precarious economic situation. She suffered from media exposure and missed her nursing career. Her ordeal appears disproportionate compared to the harm she inflicted on patients. Claimants reported feeling ‘awkward’ and ‘uncomfortable’, while one said what happened was ‘very bizarre’ and a ‘Monty Python skit’.
Despite my genuine compassion for Kuteh, I do believe that religious freedom at work should not be unlimited. Not all religious expressions ought to be protected, not all demands for exemptions ought to be met. For instance, it is crucial that judges refrain from proselyting, given their role as public officials and practitioners of the law. Scheduling arrangements for religious holidays should not place an excessive burden on other employees. Religious claims must be carefully balanced against other workplace considerations.
Human right and non-discrimination law provide a general framework to regulate religious freedom. Article 9 of the ECHR famously protects ‘the right to freedom of thought, conscience and religion’, including the freedom to change religion or to manifest one’s belief individually or collectively. A 2000 European Union Council Directive crucially distinguishes between direct and indirect discrimination on religion or belief (among other protected characteristics). Direct discrimination involves treating someone less favourably on grounds of their religion or belief — because they are Christian, Muslim, Jew or atheist. Indirect discrimination is more subtle; it occurs when an apparently neutral rule has the unfortunate effect of disadvantaging individuals holding specific religious beliefs. For instance, a workplace regulation on uniforms can lead to the prohibition of some religious dress code. Whether such a rule is justified ought to be assessed on a case-by-case basis.
Although the law provides a useful general framework, each situation is specific and requires an individual judgement: to what extent was Kuteh’s religious talk inappropriate? Should firms offer part-time work to accommodate religious duties? In which cases are visible religious signs incompatible with a profession? A number of court cases have dealt with these types of workplace conflicts involving religion, such as Ahmad v. United Kingdom (1981) and Eweida v British Airways Plc (2010).
But while court cases are key for the judicial development of rights, at an individual level they are wrenching. Reflecting on her two-year legal battle, Kuteh sighed: ‘I never thought my story was gonna be over the media anyway (…) It’s been costly, very costly.’ Litigation is no panacea; it is costly both on a material and immaterial level. It should remain the last resort, while other procedures should be explored to negotiate religious freedom at work.
Here Alternative Dispute Resolution (ADR) comes into play. ADR refers to a set of dispute processing methods, such as arbitration and mediation. Unlike litigation, ADR relies on the consent of the parties involved and seek a mutually satisfactory solution. In the UK, ACAS (the Advisory, Conciliation and Arbitration Service) is a public provider of ADR. Acas helps disputants find an arrangement (called ‘Early Conciliation’) before submitting a claim to an employment tribunal.
It does not seem that Kuteh’s dismissal was preceded by an attempt at conciliation. Whether a mediation could have achieved a more favourable outcome in Kuteh’s case is pure speculation. Yet it would have been worth a try, to avoid years of anxiety.
A mediator could have intervened before Kuteh’s dismissal to facilitate communication between her and the Matron, Suki Gill. Gill gave a very explicit warning to Kuteh in a private discussion detailed in a letter, expressing patients’ complaints, and concluding that no discussion about religion should occur in the assessments, unless initiated by patients themselves. Gill’s warning was perfectly clear. Yet Kuteh did not obey. She most likely thought that the prohibition was unjustified and that her duty to spread the Gospel remained undefeated.
A professional mediation could have improved mutual understanding and explored paths to compromise. Perhaps Kuteh could have been persuaded that it was insensitive and unprofessional to impose her religious views on fragile patients. Perhaps she could have been given a different role within the NHS which did not involve conducting these patient assessments. Perhaps she could have been allowed instead to wear a small cross as a visual testimony of her faith. A compromise solution would have been better for her than the radical option of her dismissal, which left her mortified and impoverished.
Note: The above draws on the author’s published work in Political Studies.
Élise Rouméas is Postdoctoral Research Associate in the Department of Politics and International Relations at the University of Oxford.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).