The recent Employment Appeal Tribunal (EAT) judgment in Ngole v Touchstone Leeds is one in a line of recent authority confirming that protection of freedom of belief in the workplace extends beyond mainstream or popular views. That includes when those beliefs are expressed on social media as well as in the workplace.
Background
The claimant was a Christian social worker. He applied for a role with Touchstone, a charity that provided mental health services to people including those in the LGBTQI+ community. Following an interview, Touchstone made a conditional offer of employment to the claimant. Having made that offer, Touchstone requested references and, not being satisfied with those references, carried out an online search on the claimant. The search brought up news articles about a claim the claimant had brought against Sheffield University when he was removed from its MA Social Work course because of some Facebook posts which expressed his view that homosexuality was a sin. 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 reinstated.
Employment tribunal
The claimant complained of direct discrimination, harassment and indirect discrimination in relation to religion or belief. 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 claim succeeded in part. The tribunal found the job offer should not have been automatically withdrawn following the online search, the reason for that withdrawal being the claimant's religious beliefs. Further direct discrimination claims relating to the second interview and the failure to reinstate the job offer were unsuccessful. The claimant appealed the unsuccessful direct discrimination claims.
Employment Appeal Tribunal
In coming to its judgment, the EAT examined recent Court of Appeal decisions that establish that although direct discrimination is not usually capable of justification, in cases dealing with objectionable manifestation of beliefs, employers will need to demonstrate that their response is objectively justified and proportionate.
The EAT was of the view that the employment tribunal in this case had failed to adequately consider whether Touchstone's concerns related to the way the claimant manifested his beliefs or to the beliefs themselves. If the concerns related to the beliefs, that would amount to direct discrimination that was not justifiable. If they related to how the beliefs were expressed (manifested), then the tribunal needed to address whether Touchstone's response was justified. It had not adequately done that.
The consequence of that was that part of the employer's decision to call the claimant for a second interview and the entirety of its decision not to reinstate the job offer was remitted to the employment tribunal to be analysed again.
Comment
When an individual shares their protected beliefs either in the workplace or more widely via social media, an employer must ensure that any response is properly considered. This includes situations where the employer may have concerns about reputational damage to their organisation caused by comments made by an individual connected to them.
When faced with such a situation, an employer must assess whether it is genuinely the manifestation of a protected belief that they are objecting to and not simply the belief itself. If it is the latter, then any action the employer takes would be direct discrimination and cannot be justified. That is the case even when the belief in question may be offensive to the employer or others.
If it is the manifestation of the protected belief that is being objected to, the employer should also assess whether there is something inappropriate or objectionable in that manifestation. If there is not, then taking action against the employee will be directly discriminatory and not capable of justification.
An employer can only justify taking action in relation to the manifestation of a protected belief if there is (1) something objectionable in the way the employee manifested their protected belief and (2) the action taken by the employer is a proportionate means of achieving a legitimate aim. Dismissal from employment or withdrawal of a job offer will require a high level of justification. That will include considering whether alternative actions could have been taken that still achieve the employer's objective, for example having measures in place to ensure that staff properly conduct their full range of duties in a non-discriminatory way regardless of their personal protected beliefs.
