Social worker discriminated against despite expressing negative views on homosexuality

In the latest case considering the conflict between two protected characteristics under the Equality Act (the Act), an employment tribunal found that a prospective employer discriminated against a Christian social worker by retracting a job offer.

Background

Religion or belief and sexual orientation are both characteristics protected from discrimination under the Act. The case law is developing in this complex area, which requires employment tribunals to consider whether it is justifiable to limit how someone manifests their beliefs due to the extent to which those beliefs infringe on the rights of others.

Facts

In Ngole v Touchstone Leeds, Mr Ngole, a qualified social worker, applied for a job with Touchstone as a discharge mental health support worker. In his application form he declared his religion to be Christian. He was offered the role subject to a clear DBS check and satisfactory references. Around 12% of Touchstone’s work includes providing services to the LGBTQ+ community.

Touchstone subsequently conducted a Google search on Mr Ngole and found newspaper articles reporting that he had been dismissed from a social work course after posting derogatory comments about gay and bisexual people on Facebook. Touchstone withdrew the job offer.

Mr Ngole issued claims for religion and belief discrimination and claimed that Touchstone had breached his rights to freedom of thought and expression.

Finding

The employment tribunal upheld one of Mr Ngole’s claims which was that of direct discrimination. It did so on the grounds that, whilst withdrawing the job offer to protect the welfare of service users was sufficiently important to justify the limitation of Mr Ngole’s rights to freedom of expression, a less intrusive measure could have been used without compromising that objective. 

Whilst Touchstone did later invite Mr Ngole for a further interview to give him an opportunity to provide assurances that his faith would not impact service users, this should have taken place prior to Touchstone withdrawing the job offer, which it did immediately after conducting the Google search. Withdrawing the job offer straight away went further than was reasonably necessary. 

Comment

Touchstone showed that its decision makers had taken care to fully consider the impact of Mr Ngole undertaking the role and had provided comprehensive arguments regarding the risk to service users.

It was able to show that its actions were proportionate in many respects, the only successful claim relating to not providing Mr Ngole with the opportunity to provide assurances prior to the job offer being withdrawn. Employers should give careful consideration prior to taking any action against an employee because of them expressing views that could relate to a protected characteristic under the Act.  It is also sensible to take legal advice.  Any such consideration or mitigating steps taken should be fully documented.