In a recent case called Ngole v Touchstone Leeds, Mr Ngole applied for a social work role and received a conditional offer. Touchstone later found online articles reporting Facebook comments he had made expressing his traditional Christian belief that homosexuality is a sin. Following this discovery, Touchstone withdrew the offer and held a further interview, after which the withdrawal was confirmed.
Touchstone said its concerns were that service users might discover the posts, undermining trust, and that Mr Ngole’s views might conflict with its commitment to supporting the LGBTQI+ community.
The Employment Appeal Tribunal (EAT) remitted several issues back to the original tribunal, including:
- The Employment Tribunal had not clearly explained why it treated Mr Ngole’s comments as engaging freedom of expression (Article 10) rather than freedom of religion or belief (Article 9).
- Less favourable treatment can potentially be justified where there is an objectionable manifestation of belief, but not for the belief itself or its expression. The Facebook posts were unlikely to be objectionable manifestations. If the treatment was based on concern that others might discover the articles about the posts, this could not be justified.
The EAT said the Employment Tribunal must consider, in respect of each identified ‘reason’ for the treatment:
- Was it genuinely an objection to the manifestation of the belief rather than the holding of belief itself (discrimination for holding of the belief cannot be justified)?
- If the reason was the manifestation of the belief, was there something objectionable in the manifestation? – if not, the treatment cannot be justified.
if the reason for the treatment was something objectionable in the manifestation of the belief, was the treatment proportionate?