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This issue was considered by the Employment Appeal Tribunal (EAT) in Ngole v Touchstone Leeds EAT 29 before Employment Judge James Tayler.
Mr Ngole was a Christian who applied for a job with Touchstone. Touchstone is a charity which provides mental health services. Many of its users are from the LGBTQI+ community.
In his private life Mr Ngole had posted on Facebook his beliefs about homosexuality being a sin and same-sex marriage also being a sin. He had been removed from his university social work course and was bringing a claim against the university.
When Touchstone read reports of Mr Ngole's case against the university it withdraw a job offer made to Mr Ngole. Mr Ngole brought a claim against the charity.
A tribunal held that withdrawing the job offer was direct discrimination because of the claimant's beliefs. It did however hold that requiring the claimant to attend a second interview to provide assurances that his beliefs would not impact service users was not direct discrimination, neither was refusing to reinstate the job offer.
Mr Ngole appealed the decision.
On appeal the EAT held that the tribunal had failed to identify
if the beliefs were the reason for the treatment or whether it was
the way those beliefs were manifested which was the
problem. The EAT held that the ET had failed to identify, for each
act, the reasons why the charity acted as it did. Each reason
should then have been separately analysed. The tribunal had not
identified what Touchstone's service users might object to in
the Facebook posts and whether what was objectionable was severable
from the beliefs of Mr Ngole.
The respondent accepted that despite finding them objectionable, Mr Ngole's beliefs were protected beliefs.
If Touchstone withdrew the job offer because its service users might be upset at the beliefs held by Mr Ngole that would amount to direct discrimination which is not capable of justification. If however, it was the manifestation of those beliefs, (what he said and the way he said it) which was the reason why the job was withdrawn, then that might be justified as a proportionate response. A careful analysis was required to ascertain the reason why Touchstone behaved as it did and that analysis had not been undertaken at the first instance tribunal hearing.
The case was remitted to the original tribunal to have them undertake the appropriate analysis.
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