In this case, the EAT held that an employment tribunal had erred in failing to determine whether a charity's actions in not recruiting a job applicant were because of his religious beliefs or because he had manifested those beliefs inappropriately.
Facts
The Claimant, Mr Ngole, is a Christian social worker who had a conditional job offer to be a mental health support worker withdrawn by a mental health charity after it discovered his historic Facebook posts. These were posted as part of a debate about biblical teachings on marriage and same sex relationships. In its email withdrawing the offer the charity set out its concerns about Mr Ngole's ability to act in the best interests of the charity, service users and staff given [his] "strong views". It also expressed the view that he would not be able to perform in the role without posing a "significant risk to the charity's service users and reputation". Mr Ngole was asked to attend a second interview, at which he gave assurances that he would abide by the charity's policies. The charity did not reinstate the offer, as it remained concerned that Mr Ngole would not provide the required support to LGBTQI+ service users, and that there may be risks to staff and service users if they found his earlier comments online.
Mr Ngole brought employment tribunal claims of direct religion and belief discrimination arguing that withdrawing the job offer, requiring him to attend a second interview and refusing to reinstate the job offer were because of his protected Christian beliefs. The tribunal found that the charity had directly discriminated against Mr Ngole when it first rescinded the job offer. However, it rejected his claims relating to the second interview and the final decision not to employ him. It also rejected Mr Ngole's claims of indirect discrimination and harassment. For more detail about the employment tribunal decision, please see our earlier client alert here.
Mr Ngole appealed. The EAT held that the employment tribunal had erred in its analysis of his direct religious discrimination claims and remitted these for rehearing. It dismissed the other aspects of his appeal.
In upholding the direct discrimination appeal, the EAT found that the tribunal had failed to analyse whether each reason given by the charity for not recruiting Mr Ngole was genuinely an objection to the manifestation of his belief or rather to the holding of the belief itself. The employment tribunal should have looked at whether, if the reasons for Mr Ngole's treatment was the manifestation of his beliefs, there was something objectionable in how the belief was manifested. The EAT noted that if the decision to call Mr Ngole to the second interview was because of concerns that service users might have reacted badly to the fact he held the protected religious beliefs in question that would be treatment because of the belief and not capable of justification. If the reason for Mr Ngole's treatment was something objectionable in the manifestation of the belief, the tribunal should then have asked whether the treatment was proportionate in pursuance of the charity's identified legitimate aims. The original tribunal had failed to carry out this crucial analysis. The same analytical error arose in respect of the tribunal's judgment on the charity's decision not to reinstate the job offer after the second interview.
We understand that Mr Ngole intends to further appeal to the Court of Appeal.
What does this mean for employers?
This case reinforces the need for employers to take action based on how religious beliefs are manifested rather than relying on any discomfort with the underlying belief itself. Employers must be able to explain and evidence what aspect of the expression - rather than the belief - is problematic, noting the EAT's warning that "any properly separable reason needs [in respect of protected beliefs] to go beyond the fact the protected beliefs are objectionable and upsetting to many people." If a manifestation is objectionable, employers will also need evidence to show that any action taken in response is proportionate and this applies for each reason they rely on. This will include showing why the organisation's legitimate aims cannot be achieved in a less intrusive way. If any reason for the treatment is because of the belief itself, the treatment will be unlawful and cannot be justified.
This case is also a reminder that social media searches in recruitment must be handled cautiously: historic posts should be carefully considered and not be treated as inherently disqualifying.
