Mr Ngole is a Christian, and a qualified social worker. In April 2022 he applied for a role as a discharge mental health support worker at Pinderfields Hospital in Wakefield with Touchstone Leeds, a charity which provides mental health and wellbeing services. Fourteen others applied for the role, but Mr Ngole was the best candidate and he received a conditional job offer (subject to a clear DBS certificate and satisfactory references).

Touchstone took up two professional references. These only supplied factual information, and Mr Ngole provided a third, personal reference which did not accord with Touchstone's reference policy. One of Touchstone's employees, Ms Brown, therefore carried out a Google search. She discovered information published by BBC News and The Guardian covering a High Court case that Mr Ngole had brought against the University of Sheffield following his removal from the social work course. This detailed that he had posted comments on a Facebook debate about a state official in the USA who refused to register same-sex marriages. Mr Ngole argued on Facebook that the official's position was based on the "Biblical view of same sex marriage as a sin" and quoted a number of bible verses in support. Mr Ngole lost at the High Court but appealed successfully to the Court of Appeal, was reinstated to his course by the University and qualified as a social worker. The Google search did not find any coverage of the Court of Appeal decision.

Following the Google search Touchstone withdrew the job offer on 10 June 2022 without any discussion with Mr Ngole. They stated that in the light of only receiving basic references further background checks had been carried out which identified "some significant areas of concern regarding suitability for the role and Touchstone as an organisation. In particular, we have uncovered some information about you which does not align with the Touchstone Leeds ethos and values; we are an organisation proud to work in alliance with the LGBTQ+ community and we pride ourselves on being an inclusive employer". Mr Ngole responded the same day asking for the information they had uncovered, and offered to provide additional professional referees. The next day he followed up expressing concern that Touchstone "seem to have hastily made a decision that [he] would not provide a safe and equitable service to the LBGTQ community." 

Touchstone replied citing the Google articles, setting out that they had serious concerns about Mr Ngole's ability to act in the best interests of Touchstone, service users and staff given [his] "strong views" and he would not be able to perform in the mental health role without posing a "significant risk to Touchstone's service users and reputation". The email also stated they would be willing to reconsider the position if Mr Ngole gave assurances that the role would not be compromised by his views, he would be able to fully embrace Touchstone's values and work respectfully with those he would come into contact with including the promotion of homosexual rights. In reply, Mr Ngole agreed to the meeting and sent the Court of Appeal judgment.

The meeting took place on 11 July 2022. This was described by the tribunal as a second interview, with about 40 questions and a number of scenarios. Among other points made Mr Ngole stated that as a Christian he valued people and even if he did not agree with their lifestyle he was there to help and support them, which he had done in the past and he would abide by the organisation's policies and procedures. He also said that if he was asked about the Google articles he would explain they were not related to his role, and he would not engage or discuss them as it would not be appropriate. He suggested that if anyone expressed unhappiness they could address it to his manager or they could have another social worker. He also said he would prefer not to attend LGB awareness training as marriage is between a man and a women. He said he would only talk about his views respectfully and cautiously if he was invited to. When asked if he would be a LGBTQ+ ally he said he would be an ally for every staff member and service user. He said that Touchstone could not "make the promotion of homosexual rights a condition of my employment" and referred to his legal rights. The tribunal described the meeting as difficult. On 18 July 2022 Touchstone wrote to Mr Ngole saying the conditional job offer would not be reinstated.

Mr Ngole brought tribunal claims of direct religion or belief discrimination, indirect discrimination and harassment in relation to religion or belief. He succeeded on one aspect of his direct discrimination claim, in respect of the withdrawal of the job offer on 10 June 2022, but all his other claims failed. Some of the key points in the employment tribunal's decision were:

• Approximately a third of Touchstone's workforce and 12% of its service users are from the LGBTQ+ community.
• LGBTQ+ people are statistically more likely to experience serious mental health problems and may self-harm, experience suicidal ideations or attempt to take their own lives. They are therefore more likely to report mental health difficulties, and be hospitalised.
• The Wakefield discharge mental health support worker role was the first such role for Touchstone and part of a pilot scheme. It was a lone role aiming to provide those with mental health needs with mental health support on being discharged from hospital. The postholder needed to work closely with all community groups including LGBTQ+ organisations.
• The tribunal took account of the Court of Appeal's decision in Mr Ngole's University of Sheffield case that his views were a religiously motivated contribution to a political debate about the place of religious belief in the delivery of public services. While the views were derived from his faith, they were not a protected manifestation of religion and so did not engage Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) only Article 10: freedom of expression.
• 30% of Touchstone's workforce declared themselves to be Christian.
• In deciding the direct discrimination claim in respect of withdrawing of the offer without discussion succeeded, the tribunal found that the reason for this was Mr Ngole's public expression of his views. These were rooted in his religious beliefs, which left Touchstone concerned for the safeguarding of their service users. Touchstone had wrongly confused the expression of these views with the notion that the person holding them would discriminate.
• The tribunal found that the reason why the job offer was not reinstated after the interview on 11 July 2022 was that Touchstone had not received the assurance they were seeking and concluded the risk of engaging Mr Ngole was too great. Touchstone had to balance what they heard at the second interview against the potential impact of employing Mr Ngole on its LGBTQ+ service users, who were particularly vulnerable and might be negatively impacted if they saw the public Google content. As a lone worker they could not transfer the work easily to another social worker. At this point the tribunal considered the least intrusive option open to Touchstone when balancing these rights was not to reinstate the conditional offer. The same analysis applied to the letter informing Mr Ngole of the outcome on 18 July.
• On the harassment claims, the letter of 14 June and the second interview were not harassment: they gave Mr Ngole the opportunity to provide assurances at the point that there was a negligible risk to the LGBTQ+ service users as he was not in post.
• Neither was the second interview harassment as the questions were not directed at his religious beliefs in and of itself, but at the compatibility of his views with the role at Touchstone.

What this means for employers

We understand Mr Ngole intends to appeal this decision. While only a tribunal decision at this stage it is another warning to prospective employers, and employers, that if they discover social media posts which they, or others, may find difficult or offensive they should press pause and explore, with those holding the beliefs, how they might be accommodated. Seeking a compromise before withdrawing job offers or taking disciplinary action will assist employers in showing they have tried to balance any competing rights. Whether there is a least intrusive measure available to an employer is part of the proportionality test for set out by the EAT in the Higgs v Farmor's School case (see more here). Higgs is being heard by the Court of Appeal this October, and will provide further guidance on what is an objectionable manifestation of a belief and whether the same test should apply to social media posts expressed outside of the workplace.

Ngole v Touchstone Leeds