EAT remits Christian applicant case for fresh analysis of belief and manifestation

Background

In the case of Ngole v Touchstone Leeds, the claimant, a Christian social worker, had previously posted comments on Facebook stating that homosexuality and same-sex marriage were sinful. A mental health charity made him a conditional job offer but withdrew it after discovering media reports about those posts.

He was later invited to a further meeting to provide assurances about his ability to support LGBTQI+ service users. The charity ultimately decided not to reinstate the offer.

The tribunal upheld the initial withdrawal of the offer as direct discrimination but rejected complaints relating to the second meeting and the final refusal to reinstate the role.

EAT decision

The EAT held that the tribunal had erred in law in its analysis of the direct discrimination complaints.

In belief cases, a tribunal must identify the employer’s reasons for each act and analyse them separately. A key distinction must be drawn between treatment because of the belief itself, and treatment because of something objectionable in the way the belief is manifested.

The EAT accepted that the charity was entitled to seek assurances that the claimant would comply with its policies and fully support LGBTQI+ service users. However, the tribunal had not properly examined whether part of the employer’s reasoning was simply that service users might discover that the claimant held certain protected beliefs and find that upsetting.

If the treatment was because of the mere fact that he held those beliefs, that would amount to direct discrimination and could not be justified. The case was remitted to the same tribunal to re-analyse the reasons for requiring the second meeting and for refusing to reinstate the job offer.

Learning points for employers

Where recruitment decisions raise issues about religion or belief, employers must be clear whether their concern relates to conduct and role performance, or to the belief itself. Requiring compliance with equality policies and core duties is lawful in principle. Acting because others may object to the mere fact that a candidate holds a protected belief is far more likely to be unlawful. Clear, structured reasoning at the time of the decision will be critical.

For support or advice, please contact Alastair Fatemi in our Employment team.