Is it unfair to dismiss an employee for proselytising – that is, for
trying to persuade someone to change their religious beliefs?
if the proselytising is improper, according to the Court of Appeal (CA)
in the case of Kuteh v Dartford and Gravesham NHS Trust.
Kuteh, a committed Christian, was employed by Gravesham NHS Trust as a
Junior Sister in the Intensive Therapy Unit. Her role required her to
carry out assessments of patients who were due to undergo surgery and
this included making a simple enquiry as to the patient’s religion and
noting their response. However, during assessments Mrs Kuteh often took
the opportunity to talk to patients about religion. Complaints were
raised by some patients about this, causing the Matron to speak to Mrs
Kuteh about the inappropriateness of her actions. Mrs Kuteh assured the
Matron that she would not discuss religion with patients again. However,
she breached that assurance on subsequent occasions, including saying a
prayer with a patient (which the patient later said was very intense
and went ‘on and on’) and asking that patient to sing a psalm with her.
Disciplinary proceedings were brought and Mrs Kuteh was dismissed on the
ground of gross misconduct.
As a result of her dismissal, Mrs
Kuteh brought a claim for unfair dismissal, although not for
discrimination on grounds of religious belief.
Tribunal found the dismissal to be fair, deciding that the Trust’s
conclusion that these incidents amounted to gross misconduct and that
dismissal was appropriate was reasonable.
Mrs Kuteh appealed this
decision to the Employment Appeal Tribunal (EAT), but the EAT refused
the appeal. Mrs Kuteh further appealed to the CA, complaining that the
initial Employment Tribunal Judge had failed to distinguish between true
evangelism and improper proselytising.
The CA dismissed the
appeal. The Court concluded that Mrs Kuteh had acted inappropriately
both by improperly proselytising to patients and by failure to follow a
lawful management order. The CA said that the disciplinary process was
conducted fairly, by way of an investigation, disciplinary hearing and
subsequent appeal and said that the conclusion to dismiss was reasonable
Consideration was given by the Court to the issue of
human rights and the right to freedom of thought, conscience and
religion. That right, however, while it protected the manifestation of a
religious belief, did not protect the inappropriate promotion of that
Is it discriminatory to pay men on shared parental leave less than an enhanced rate which is paid to women on maternity leave?
according to the Court of Appeal (CA) in the joint case of Ali v
Capital Customer Management Limited and Chief Constable of
Leicestershire Police v Hextall.
Both cases concerned whether it
was unlawful sex discrimination, which is prohibited by the Equality Act
2010, for men to be paid less by their employer on shared parental
leave than women working for the same employer are paid on maternity
leave. Despite the similarities between the two cases, the arguments
presented were slightly different.
In both cases, employees (male
or female) who took a period of shared parental leave were only paid the
statutory rate by their employer for such leave, whereas employees who
took maternity leave (and who therefore were obviously female) were paid
an enhanced rate, which was more than their statutory maternity pay
In the case of Ali v Capital Customer Management
Limited, Mr Ali argued that for his employer to pay him less for a
period of shared parental leave than it would pay a woman who was on
maternity leave amounted to direct sex discrimination.
In the case
of Chief Constable of Leicestershire Police v Hextall, Mr Hextall
argued that for his employer to pay him less than the enhanced maternity
pay he would receive if he were a woman on maternity leave was indirect
sex discrimination The fact that both women and men taking shared
parental leave would only be paid the statutory rate was more likely to
have an adverse effect on men than women and, he argued, was not
justified and so was unlawful indirect sex discrimination.
CA considered these cases together and decided that it was not sex
discrimination, either direct or indirect, to pay men no more than the
statutory minimum rate for shared parental leave when women on maternity
leave were paid more than statutory maternity pay.
When coming to its conclusion, the Court decided as follows:
discrimination – the purpose of maternity leave is not predominately
childcare, but is to protect a woman in connection with the effects of
pregnancy and motherhood. Therefore, men on shared parental leave and
women on maternity leave are not in comparable positions for the
purposes of the Equality Act 2010 and so a direct sex discrimination
claim based on an employer treating them differently from one another is
Indirect discrimination – the CA decided that Mr
Hextall’s claim was an equal pay claim and this meant that it had to be
brought under the equal pay section of the Equality Act 2010 (section
66) rather than the section relating to indirect discrimination (section
19). The equal pay provisions in the Equality Act 2010 state that an
equal pay claim fails if it is based on terms which provide special
treatment to women in connection with childbirth or pregnancy and
therefore Mr Hextall’s claim could not succeed.
Should side effects from treatment of a visual impairment be considered when assessing whether the impairment is a disability?
is something which has to be assessed on a case by case basis,
according to the Employment Appeal Tribunal (EAT) in the case of Mart v
Assessment Services Inc.
Usually, when assessing whether a
condition meets the legal definition of disability, it is necessary to
look at the effect which the condition would have on the individual’s
ability to do normal day to day things if the individual was not taking
medication or other steps to reduce the effect of the condition.
the Equality Act 2010 states that where the condition is a visual
impairment, then it is not a disability if it is ‘correctable by
spectacles or contact lenses or in such other ways as may be
Mrs Mart had double vision and was prescribed a
special contact lens for one of her eyes. The lens she had to wear
corrected and improved her vision, but it blacked out the eye and also
restricted her peripheral vision.
Mrs Mart brought a disability
discrimination claim, but that claim could only proceed if she had a
disability and the question was whether her visual impairment was a
disability. It would not be if it was ‘correctable’.
concluded that deciding whether a visual impairment is ‘correctable’ is
something to be judged on a case by case basis and is not just a
question of ‘whether the sight impairment is resolved by the use of
spectacles or lenses’. For example, would the prescribed contact lens
have side effects which were such as to make the use of the lens
unacceptable or unworkable? In that case, the impairment might not be
correctable, but that was not the position for Mrs Mart and the EAT
upheld the earlier decision of the Employment Tribunal that her
condition was not a disability.