At a Glance
We look at the evolving state of protected belief discrimination in the recent Employment Appeal Tribunal (‘EAT’) case of Ngole v Touchstone Leeds, which offers employers further guidance on the appropriate analysis in manifestation of belief cases following last year’s Court of Appeal decision in Higgs v Farmor’s School.
The Legal Framework: Manifestation of Belief After Higgs
In Higgs v Farmor’s School, the Court of Appeal clarified how tribunals should analyse employer action in response to an employee’s manifestation of belief in direct discrimination cases (see our previous article here).
It held that an employer cannot dismiss or otherwise disadvantage someone simply because they have expressed a protected belief that the employer (or others) find unpalatable. If the action is taken because of the belief itself, it amounts to unlawful direct discrimination under the Equality Act 2010.
However, if the concern is not the belief, but something genuinely objectionable in the way the belief was expressed (assessed objectively), then the employer may be able to take action but only if it can show that the response was proportionate to that objectionable aspect. The employer must demonstrate that its decision was objectively justified in the circumstances and that less intrusive options were properly considered.
The Ngole decision considers how this should be applied.
Background
The employer in this case was a mental health charity that provided mental health and well-being services to vulnerable people, with a particular track record for tailoring its services to the LGBTQI+ community. Approximately a third of its workforce and 12% of its service users were from the LGBTQI+ community but the charity also supports various faith groups and just under third of staff are said to describe themselves as Christian. In May 2022, the employer offered a role to Mr Ngole as a mental health support worker, subject to satisfactory references.
Due to some difficulties with references, the charity carried out some online searches which revealed news stories about Facebook posts in which Mr Ngole had said that homosexuality and same-sex marriage was a sin. Touchstone withdrew the offer on the basis that his stated views conflicted with its values and could pose significant risk to service users.
Mr Ngole challenged the decision, leading to a follow-up meeting to explore whether Mr Ngole was able to give assurances that his views would not compromise his role and to understand if he would be able to fully embrace and promote the charity’s values. Following this meeting, the charity confirmed the withdrawal of the offer.
He brought claims of direct discrimination, indirect discrimination, and harassment based on his protected beliefs.
The ET’s Decision
The Employment Tribunal (‘ET’) partially upheld Mr Ngole’s claims.
It found that the initial withdrawal of the job offer amounted to direct discrimination, as Touchstone acted because of the protected belief without further enquiry. However, the ET rejected the claims concerning the follow-up meeting and failure to reinstate the offer. It accepted that Touchstone’s later decisions were driven by legitimate concerns about whether Mr Ngole could carry out the role without negatively impacting service users, and the risk of service users encountering his views, given they were publicly expressed.
Mr Ngole appealed to the EAT.
The EAT’s Decision
The EAT found that the ET had not properly examined the charity’s reasons for each decision or considered whether its concerns about service users potentially coming across the Facebook posts and their reactions to them were separable from the claimant’s protected beliefs. The EAT noted that although some might find the claimant’s views objectionable, the charity accepted that those views were protected. If the charity acted simply because service users might be unhappy that he held those beliefs, that would amount to unjustifiable direct discrimination.
In terms of the steps to follow, the EAT summarised that it may be helpful to ask the following questions:
- What were the reasons for the treatment?
- In respect of each reason, was it genuinely an objection to the manifestation of the belief rather than the holding of the belief itself, and if the reason was the manifestation, was there something objectionable about it?
- If the reason for the treatment was something objectionable, was the treatment prescribed by law and proportionate, considering the importance of the employer’s objective, whether the measure is rationally connected to that objective, whether a less intrusive measure could have been used and having conducted a balancing exercise?
The case has been remitted to the same tribunal for reconsideration.
Key Takeaways
Although this case still is to be decided on its outstanding points on the facts, it shows an emerging picture of the case law and highlights the challenges employers face when dealing with conflicting views in the workplace, particularly where views are expressed that they, or their customers, may not agree with or find offensive.
The case highlights the risk of direct discrimination claims, including at the pre-employment stage, where action is taken based on an individual’s protected beliefs, notwithstanding that there may be legitimate concerns about the wider impacts of those beliefs on customers or service users. Before taking steps such as dismissal or withdrawal of a job offer, employers should carefully consider their reasons for acting and assess whether their motivation is the individual’s beliefs themselves or the way the beliefs were expressed. If the latter, any action taken will still need to be justifiable and proportionate. Knee jerk decisions, such as immediate withdrawal of job offers based on social media posts, are unlikely to be objectively justifiable. Even where a belief conflicts with organisational values, employers must assess the specific, role-related impact of any expression and ensure any response is cogent, well reasoned, well documented, separable from the belief itself and proportionate.
