This issue was considered by the Employment Appeal Tribunal (EAT) in Ngole v Touchstone
Leeds EAT 29 before Employment Judge James Tayler.
Mr Ngole was a Christian who applied for a job with Touchstone. Touchstone is a charity
which provides mental health services. Many of its users are from the LGBTQI+ community.
In his private life Mr Ngole had posted on Facebook his beliefs about homosexuality being a
sin and same-sex marriage also being a sin. He had been removed from his university social
work course and was bringing a claim against the university.
When Touchstone read reports of Mr Ngole’s case against the university it withdraw a job
offer made to Mr Ngole. Mr Ngole brought a claim against the charity.
A tribunal held that withdrawing the job offer was direct discrimination because of the
claimant’s beliefs. It did however hold that requiring the claimant to attend a second
interview to provide assurances that his beliefs would not impact service users was not
direct discrimination, neither was refusing to reinstate the job offer.
Mr Ngole appealed the decision.
On appeal the EAT held that the tribunal had failed to identify if the beliefs were the reason
for the treatment or whether it was the way those beliefs were manifested which was the
problem. The EAT held that the ET had failed to identify, for each act, the reasons why
the charity acted as it did. Each reason should then have been separately analysed. The
tribunal had not identified what Touchstone’s service users might object to in the Facebook
posts and whether what was objectionable was severable from the beliefs of Mr Ngole.
The respondent accepted that despite finding them objectionable, Mr Ngole’s beliefs were
protected beliefs.
If Touchstone withdrew the job offer because its service users might be upset at the beliefs
held by Mr Ngole that would amount to direct discrimination which is not capable of
justification. If however, it was the manifestation of those beliefs, (what he said and the way
he said it) which was the reason why the job was withdrawn, then that might be justified as
a proportionate response. A careful analysis was required to ascertain the reason why
Touchstone behaved as it did and that analysis had not been undertaken at the first instance
tribunal hearing.
The case was remitted to the original tribunal to have them undertake the appropriate
analysis.
This blog was written by Yavnik Ganguly, Senior Solicitor at didlaw.
