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Employment Law Case Update: Personal Expression in the Workplace

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As an employer, having staff that are comfortable to be and express themselves in the workplace is always something to be celebrated, but there may be times when it becomes inappropriate. Two recent tribunal claims highlight the challenge for employers regarding personal expression by employees in the workplace.

In Kuteh v Dartford and Gravesham NHS Trust the Court of Appeal held that a hospital nurse who offered a bible to one patient and advised another that his survival prospects would be improved if he prayed, was fairly dismissed for improper preaching. 

Nurse Sarah Kuteh was responsible for assessing patients about to undergo surgery, which involved asking them about their religion, but patients complained that she began unwanted religious discussions. When the issue was raised she assured management that she would not discuss religion unless a patient directly asked. After further incidents, she was dismissed on the grounds that she had breached the Nursing and Midwifery Council's code of conduct.

She later issued an unfair dismissal claim, alleging a breach of her right to freedom of thought, conscience and religion under the European Convention of Human Rights. The court recognised its importance, but said the right did not cover improper preaching. While she had an absolute right to hold her Christian beliefs, her right to practice the beliefs (talk about her Christianity to the patients) was qualified. This means her right to practice her beliefs can be limited in certain situations - for example, to protect the rights of others.

In contrast, in Mrs A McMahon v Redwood TTM Ltd and Mr Darren Pilling, a quality control manager who was asked to keep her sexual orientation secret was awarded £8,000 for direct discrimination. Miss McMahon disclosed that she was gay to her immediate boss during her first week. He told her to avoid mentioning this to anyone, saying the owner of the company was ‘old school’ and would not like it. After being made redundant some months later, she brought a claim. The tribunal agreed that the request by her manager amounted to direct discrimination on the grounds of sexual orientation, as the same request would not have been made to a heterosexual employee.

The Equality Act 2010 (“the Act”) prevents discrimination based on the protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The Act also makes it unlawful to discriminate, or treat employees unfavourably because they are pregnant, have given birth recently, are breastfeeding or are on maternity leave. 

Employers should constantly review their recruitment and working practices to keep up with the law and society’s changing attitudes. There is no special escape clause for those who are ‘old school’ and employers should also have up to date equal opportunities policies detailing their approach to equal opportunities and setting out what is and what is not acceptable.

If you have any questions on anything raised in this article, or would like a review of your recruitment and working practices please contact the Employment team on 023 8071 7717 or email them at employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or click here for the subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.