What happened?
Mr Ngole, a Christian social worker, applied in April 2022 for a Discharge Mental Health Support Worker role with Touchstone Leeds (a charity providing mental health and wellbeing services, including significant work supporting LGBTQI+ service users).
He was offered the role, subject to satisfactory references.
Touchstone received two brief references, which were merely dates of employment. When asked for a further professional reference, Mr Ngole provided one from a “family friend”, which did not meet Touchstone’s recruitment policy. Touchstone then carried out a Google search and found BBC/The Guardian coverage about historic Facebook comments Mr Ngole had made (from 2015).
The coverage referred to statements including: “same sex marriage is a sin whether we accept it or not” and “homosexuality is a sin, no matter how you want to dress it up”. Those comments had previously attracted national media attention because they featured in Mr Ngole’s earlier Court of Appeal case, R (Ngole) v The University of Sheffield [2019] EWCA Civ 1127, in which he challenged the University’s decision to remove him from its social work course on fitness to practise grounds, following his historic Facebook posts about homosexuality. That judgment also recorded that he had described homosexuality as “a wicked act”.
Touchstone withdrew the conditional offer on 10 June 2022, citing the reference issues and stating that information found online did not align with Touchstone’s ethos and values as an organisation that works in alliance with the LGBTQI+ community.
After further correspondence, Touchstone invited Mr Ngole to a second interview on 11 July 2022, seeking assurances he could do the role in line with its inclusion policies (including mandatory training, respectful communication and signposting to relevant specialist services).
Touchstone ultimately decided not to reinstate the offer. A key part of its reasoning was concern about:
- role suitability/safeguarding;
- how service users might react if they discovered the historic online material;
- the potential impact on vulnerable service users and staff; and
- reputational and commissioning risk if the service could not be delivered safely and inclusively.
What claims were brought?
Mr Ngole brought claims for direct discrimination on the grounds of religion or belief, indirect discrimination on the grounds of religion or belief, and harassment related to religion or belief.
He relied on the following beliefs:
(1) “marriage is a divinely instituted lifelong union between one man and one woman”;
(2) “the expression of sexual relationships only accords with Biblical teaching when expressed within a monogamous marriage of one man and one woman”;
(3) “sex is a biologically immutable fact”; and
(4) a lack of belief “that it is possible for a person to change their sex/gender”.
What did the Employment Tribunal say?
At first instance, the Employment Tribunal upheld one direct discrimination complaint: the initial withdrawal of the conditional offer on 10 June 2022. The Tribunal concluded that Touchstone had withdrawn the offer because of Mr Ngole’s expression of views rooted in his religious beliefs. Touchstone had assumed, based on the expression of those views, that Mr Ngole would discriminate against its service users, without first giving him a proper opportunity to address those concerns.
The Tribunal dismissed Mr Ngole’s other complaints, including direct discrimination allegations about:
- the requirement for him to attend a second interview; and
- the subsequent decision not to reinstate the job offer.
Those later decisions were found to be driven by concerns about role suitability and safeguarding (including whether he would fully comply with Touchstone’s equality/anti-discrimination approach when working with vulnerable LGBTQI+ service users), rather than because he held the protected beliefs. The Tribunal also dismissed the claims of indirect discrimination and harassment related to religion or belief.
What did the EAT say?
Mr Ngole appealed to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal in part, holding that the Employment Tribunal had erred in law in its analysis of the direct discrimination claims relating to (i) the requirement to attend the second interview and (ii) the final decision not to employ him (i.e. the refusal to reinstate the offer).
The EAT found that the Tribunal had not properly:
- identified the reason(s) for each act or analysed each reason separately; and
- separated whether the reason for the treatment was an objection to Mr Ngole’s protected beliefs themselves (which cannot be justified) or an objection to the way Mr Ngole had manifested those beliefs (which can be justified, subject to a proportionality analysis).
The EAT reiterated that employers cannot treat someone less favourably simply because others may object to their protected belief. Where the employer says it has acted because of how the belief was expressed (rather than the belief itself), or because of role-related capability concerns, it must be clear what feature it relies on and demonstrate that the treatment was proportionate.
Accordingly, the findings on the direct discrimination issues concerning the second interview and the refusal to reinstate the offer were set aside and remitted to the same Employment Tribunal for reconsideration using the correct legal framework. The appeal was otherwise dismissed.
Why does this matter?
This case is a helpful reminder that you can – and should – hold people to the standards needed for the role (especially in safeguarding settings) without making assumptions about them because of a protected belief.
- Protected beliefs: religions and beliefs can be protected under the Equality Act 2010. Employers should avoid making decisions based solely on the fact someone holds a particular belief if that belief is likely to be protected.
- Focus on the job: it is OK to explore whether someone will deliver the role in an inclusive, respectful way (for example, following your equality policies, completing training, and supporting service users appropriately).
- In practice: if you use online searches as part of recruitment, try to keep it consistent and role-relevant. If something flags a concern, explain those concerns clearly to the candidate, give them a chance to respond, and note down the reasons for your final decision in a way you’d be comfortable explaining later.
Top 5 lessons for employers
- Be clear what you are worried about. Is it the person’s protected belief itself, or a role-related conduct or capability issue? If it is the former, any treatment based on this would be unlawful direct discrimination.
- Don’t make assumptions. Anticipated upset from colleagues/service users is not, by itself, a lawful basis for recruitment decisions if the real concern is the belief itself.
- If you rely on treatment as an objection to the way the belief has been manifested, define it. Pin down what feature of the manifestation of the belief is problematic (language, context, audience, safeguarding impact) and why it matters to the job.
- Provide a fair chance to respond. Where new information emerges post-offer, explain concerns to the candidate, invite discussion, and consider whether training/supervision/clear boundaries could manage risk before making a decision.
- Document reasoning step-by-step. For each decision made or response given, record the specific reasons, any alternative options considered, and why those alternatives were deemed unsuitable.
Final thoughts
The takeaway is balance: it is important to protect your service users and your values, while ensuring that you do not discriminate against candidates with protected beliefs. Clear role expectations, a calm fact-finding conversation, and contemporaneous notes will help put you in a strong position against Tribunal claims.
How Thrive Law can help
If your organisation is dealing with competing rights issues (including protected religions/beliefs, LGBTQI+ inclusion, safeguarding or reputational risk), we can help you reduce legal risk and make decisions that stand up to scrutiny.
Need help updating your recruitment approach or training managers? Drop us a line at enquiries@thrivelaw.co.uk or call us on 0113 861 8101 and we’ll talk it through.
