In a recent employment tribunal case, a Christian social worker argued that they had been discriminated against, after their job offer was retracted in response to their negative comments on homosexuality.
Under the Equality Act 2010, religion and belief is a “protected characteristic” meaning that a person is discriminated against where they are treated less favourably due to their religion or belief. If you’re interested in getting some more background on protected beliefs, you may want to read our articles on the Higgs v Farmor’s School and Randall v Trent College Limited cases. The general position is that, while certain beliefs are protected, employers are entitled to restrict the manifestation of said beliefs where they might infringe on others’ rights, provided that any such restriction is proportionate.
In Ngole v Touchstone Leeds, Mr Ngole applied for a job at Touchstone Leeds, a mental health charity. Touchstone’s work includes the provision of services to the LGBTQI+ community (around 12% of their work). Following an interview process, Touchstone offered Mr Ngole the role, conditional on them receiving satisfactory references.
In the course of obtaining these references, Touchstone became concerned by the lack of information provided by Mr Ngole’s former employers and carried out an internet search. On so doing, they learned that Mr Ngole had been dismissed from a course at the University of Sheffield in 2016, after making derogatory Facebook comments about gay and bisexual people.
Touchstone revoked the job offer, and then invited Mr Ngole to a second interview to discuss the matter further. At this second interview, Mr Ngole failed to satisfy Touchstone that his views would not compromise his role as a mental health worker. Touchstone therefore did not reinstate the job offer.
Mr Ngole brought a claim for direct discrimination, among other claims, to the employment tribunal, arguing that his rights to freedom of thought, conscience and belief and to freedom of expression, under articles 9 and 10 of the European Convention on Human Rights respectively, had been infringed upon.
Mr Ngole alleged that there were two separate elements of direct discrimination by Touchstone – requiring him to attend the second interview and failing to offer him the job.
Considering both elements, the Tribunal referred itself to the Supreme Court decision in Bank Mellat v HM Treasury. In that case, the Supreme Court had established a four-step test for determining whether a measure taken by one party to limit another’s rights is proportionate, or whether it infringes on that person’s rights by being disproportionate.
To summarise, the test is as follows:
- Is the measure’s objective sufficiently important to justify limiting the right?
- Is the measure rationally connected to the objective?
- Could the party have used a less intrusive measure (without unacceptably compromising the achievement of the objective)?
- Does the severity of the measure’s impact outweigh the importance of the objective?
Applying that test to the requirement that Mr Ngole attend a second interview, the Tribunal found that this was not a disproportionate measure and therefore was not discriminatory. Touchstone’s objective was to protect their staff and service users, as well as their reputation. This was an important objective, and there was no less intrusive measure that Touchstone could have taken than holding a second interview with Mr Ngole to satisfy themselves that he did not pose such a risk.
Turning to the job offer, the Tribunal considered that there were two aspects of this element – the withdrawal of the offer initially, followed by the decision not to re-offer the job following the second interview.
The Tribunal found that, as with the holding of the second interview, the decision not to re-offer the job was not discriminatory. Touchstone felt that they had not obtained the required assurances from Mr Ngole at the second interview that he would not pose a risk to fellow staff and service users. It was therefore proportionate of them to not offer him the job, with the objective of protecting those persons.
However, the initial withdrawal of the job offer, prior to the second interview, was deemed to be a disproportionate measure, and therefore discriminatory. The Tribunal found that a less intrusive measure could have been implemented, without compromising the objective of protecting staff, service users and reputation – for example, if they had held the second interview with Mr Ngole before withdrawing the job offer.
This case demonstrates the importance of caution and proportionality for employers dealing with religion or belief discrimination risks. Touchstone’s fatal error was in withdrawing Mr Ngole’s job offer without first seeking reassurances from him that his beliefs would not manifest in a way that could cause harm to LGBTQI+ colleagues and service users, or to Touchstone’s reputation. Had they held the second interview with him first, and only then withdrawn the job offer after Mr Ngole failed to provide such reassurances, it seems that the direct discrimination claim would have failed.
If you would like advice on discrimination risks or a discrimination claim, please get in touch at [email protected]
