In Ngole v Touchstone Leeds the claimant complained of direct discrimination, harassment and indirect discrimination in relation to religion or belief. Touchstone was a charity that provided mental health services to people including those in the LGBTQI+ community. Touchstone had made a conditional offer of employment to the claimant, who was a Christian social worker. Having made that offer Touchstone then carried out an online search on the claimant, the result of which was a finding that the claimant had been dismissed from a previous role after posting derogatory comments on Facebook about gay and bisexual people. Touchstone withdrew the job offer. When the claimant challenged this decision, he was offered a second interview to discuss Touchstone's concerns. This took place but the job offer was not re-instated.
The claims of harassment and indirect discrimination failed, the latter because the employer was able to establish that the indirect discrimination that took place was justified. However, the direct discrimination was successful in part. The Tribunal found that the job offer should not have been automatically withdrawn following the online search, the reason for that withdrawal being the claimant's religious beliefs. The claimant had also claimed that the failure to re-instate the job offer was direct discrimination, but the tribunal dismissed that claim. Following the second interview the failure to re-instate the job offer was not because of the claimant's religious beliefs, but because he had not adequately allayed their concerns about his suitability for the role.
What could the employer have done differently?
The employment tribunal accepted that in withdrawing the job offer the employer was trying to protect the welfare of its LGBTQI+ service users. However, rather than moving immediately to withdraw the offer, the employer should have given the claimant the opportunity of a second interview where he may have been able to allay their concerns regarding his suitability for the role before making a decision. In fact, the second interview was only offered when the claimant pushed back on the job offer being withdrawn. Had they immediately offered the second interview, instead of automatically withdrawing the offer, it seems likely that they would have reached the same decision as they subsequently did. While the organisation was entitled to protect its service users, it could have done so following reasoned discussion with the claimant rather than simply withdrawing the offer in what seemed like something of a knee jerk reaction.
What next for the claimant?
In light of the failure of the indirect discrimination and harassment claims, and the failure of the direct discrimination claim relating to the failure to re-instate, although an award of injury to feelings is likely to be made by the employment tribunal (the remedy hearing is yet to take place) it will be difficult for the claimant to establish any significant loss of earnings as a basis for compensation. The claimant has however indicated he intends to appeal the judgment so the story may not end here.
