Judge Brian Doyle, the President of the Employment Tribunals in England and Wales, has re-opened an investigation into Employment Judge Martin Kurrein’s conduct during the high-profile trial of Sarah Kuteh in 2017, following a Christian Legal Centre (CLC) complaint.
Sarah was dismissed as a nurse by an NHS hospital in Kent following complaints that she spoke to patients about her Christian faith and gave one patient a copy of the Bible. Following a one-day trial in March 2017, Judge Kurrein upheld Sarah’s dismissal as ‘fair’. Later in 2019, his judgment was upheld by the Court of Appeal.
However, Judge Kurrein’s handling of the case has been called into question in a series of complaints from CLC, which culminated in a High Court hearing last November. Andrea Williams, chief executive of CLC, made a formal complaint to the President of the Employment Tribunals that Judge Kurrein’s conduct of the trial was “unfair” as he was “conspicuously hostile to Mrs Kuteh and her representative throughout the hearing.”
Andrea believes that Judge Kurrein disrupted submissions by Sarah’s lawyer, Pavel Stroilov, and his cross-examination of witnesses, by “extravagantly frequent interventions” in a tone that was “quite unacceptable,” and then by launching an unwarranted personal attack against Mr Stroilov in his written judgment published after the trial.
The complaint was initially rejected by the President of the Employment Tribunals and the Judicial Appointments and Conduct Ombudsman, but the CLC and Mr Stroilov challenged the outcome in a High Court claim for judicial review.
At the hearing on 27 November 2019, Mr Justice Supperstone indicated he would grant permission for the case to proceed to a full trial. In response, the President formally agreed last week to reconsider his decision to dismiss the CLC’s complaint about Judge Kurrein’s conduct of Sarah’s trial.
Judge Kurrein had previously been investigated for misconduct following a complaint about his behaviour during different court proceedings. In 2016, the Lord Chancellor and the Senior President of the Tribunals found that “Judge Kurrein used both an inappropriate tone and inappropriate language with a party during the hearing over which he presided” and that “Judge Kurrein’s behaviour failed to demonstrate the standards expected of a judicial office holder.” The judge was then publicly reprimanded and issued with formal ‘advice’.
Unfair dismissal trial
Despite her 15 years’ nursing experience, Sarah Kuteh was sacked for gross misconduct in August 2016 after working at Darent Valley Hospital for 9 years. Although her job involved asking patients about their religion as part of a pre-op assessment, Dartford and Gravesham NHS Trust began disciplinary proceedings against her following informal complaints from patients that had been noted down by other nurses. She was sacked just two months later.
The Trust also referred her to the Nursing and Midwifery Council (NMC) for disqualification proceedings. The NMC Code provides that nurses must “make sure [they] do not express [their] personal beliefs (including political, religious or moral beliefs) to people in an inappropriate way”.
Supported by Christian Legal Centre, Sarah brought legal action for unfair dismissal. She claimed the NHS Trust failed to investigate the complaints against her properly, and that the NMC Code was not sufficiently clear as to in what circumstances a discussion with patients about faith was ‘inappropriate’.
Although the lawyers acting for both parties agreed that the case needed 3 to 4 days to be tried, Judge Kurrein drastically reduced that estimate to just one day, and further limited the cross-examination of the Trust’s witnesses to two hours.
The note of the trial made by CLC staff at the time records that the cross-examination of Sarah’s managers by her representative, Mr Stroilov, was frequently interrupted by the Judge, who often stopped important lines of questioning. In one cross-examination, the judge interrupted: “Your client admitted that she had raised religion with patients and that it was not appropriate for her to have done so,” he is recorded as saying. “This questioning is not helpful.”
When Mr Stroilov asked the manager whether patients might have made complaints because they were ‘stressed’ and ‘irritable’ as a result of their health condition, Judge Kurrein intervened to say: “I can see where this is going. These speculative questions should not be asked… Nurses are not experts on irritability and complaining. If you want to adduce expert evidence that people make complaints when irritable, you should have done it.”
The Judge also intervened when the witness was questioned about her understanding of the distinction between ‘appropriate’ and ‘inappropriate’ expression of beliefs in the nurses’ professional code of practice. The note reads:
“[Mr Stroilov to the witness]: You can’t know in advance whether someone would be offended by a comment, can you?”
“Judge Kurrein: Yes, exactly, you can’t know that. That is why you shouldn’t make the comment. Everyone has their article 9 rights [to freedom of thought, conscience, and religion] and they can believe what they wish. But in the workplace they are circumscribed. Many people are not religious and there are many people that object. It is a subject fraught with difficulty and as a consequence people should not express anything about their own beliefs without it first being raised as a question by anyone else.”
At one point, addressing Sarah’s family, friends and supporters in the courtroom, Judge Kurrein said: “My knowledge about religion is lacking. I apologise if I offended anyone.”
In a written judgment published several days after the trial, Judge Kurrein dismissed Sarah’s claim and held that her dismissal was ‘fair’.
Personal attack on a lawyer
In the same judgment, Judge Kurrein launched a scathing personal attack against Sarah’s representative. He wrote: “I had difficulty in discerning the relevance of Mr Stroilov’s cross examination, which is what led to me asking him if he was, as apparently self-described to the Security Guard on Reception duty and my Clerk, a Barrister. He confirmed to me he was not.”
It is unnecessary to be a barrister to represent a client in an Employment Tribunal, but to misrepresent oneself as a barrister is an imprisonable criminal offence. Mr Stroilov categorically denied describing himself as a barrister when the question was raised by Judge Kurrein at the trial.
After the President of the Employment Tribunals and the Judicial Appointments and Conduct Ombudsman both dismissed the CLC’s complaint against Judge Kurrein, Mr Stroilov sought to defend his reputation by bringing judicial review proceedings in the High Court. Mr Justice Johnson initially refused permission for judicial review. He pointed out that the case had already been reviewed by the President of the Employment Tribunals, twice by the Ombudsman, and by two different High Court judges, and no suggestion was made in the course of those reviews that Judge Kurrein’s accusation against Mr Stroilov was true.
However, after Mr Stroilov renewed the application to be reconsidered at an oral hearing, Mr Justice Supperstone indicated he intended to grant permission.
That, in turn, prompted the President of the Employment Tribunals to agree to re-open the investigation into Judge Kurrein’s behaviour at the trial, as well as his attack against Mr Stroilov in the judgment. The President has also agreed to pay Mr Stroilov’s legal costs.
“A symptom of anti-Christian prejudice”
Pavel Stroilov said: “A judge must not abuse his elevated position, and the trust which the public places in him, by making a personal attack on a professional advocate doing his job, let alone by making a very serious allegation against a person without having any grounds for it.
It is vital to ensure that judges are subject to proper scrutiny in order to maintain transparency and fairness. This is why this case has been brought and pursued.”
Find out more about Sarah Kuteh