Did a charity discriminate against a Christian applicant when withdrawing a job offer?

In the recent case of Ngole v Touchstone Leeds, the Employment Tribunal had to consider whether a charity had discriminated against an applicant based on his religion and belief.

Background

Touchstone is a charity providing mental health services to a number of communities, including the LGBTQI+ community. Mr Ngole applied for the role of mental health support worker; he declared in his application that he was Christian. His application was initially successful and an offer of employment was made, subject to references. Upon receipt of the references, Touchstone concluded they were not satisfactory; they then undertook an internet search against Mr Ngole’s name and found a number of articles reporting that Mr Ngole had previously been dismissed after posting derogatory comments on Facebook about gay and bisexual people. Consequently, Touchstone withdrew their job offer. 

Mr Ngole challenged Touchstone’s decision. He was then invited to a second interview to discuss the issue. The purpose of the interview was to seek assurance from Mr Ngole that his views would not compromise his ability to undertake the role, and that he would embrace Touchstone’s values, including the promotion of LGBTQI+ rights. Touchstone did not receive the assurances they sought, and accordingly Touchstone did not reinstate the job offer. 

The tribunal decision

Mr Ngole brought a number of claims in the Employment Tribunal, including direct discrimination and harassment. The tribunal were asked to consider the balance of Mr Ngole’s right to not be discriminated against because of his religion and belief, together with his right to freedom of expression, set against Touchstone’s concern about the impact on its service users. 

The tribunal found that Touchstone’s objective of safeguarding vulnerable service users was sufficiently important to justify limiting Mr Ngole’s freedom of expression. However, withdrawing the job offer before the second interview went beyond what was necessary to protect service users and, accordingly, it did amount to direct discrimination. The tribunal found that Touchstone could have achieved its objective by having the second interview before withdrawing the offer. That said, Touchstone’s decision to not reinstate the job offer was not discriminatory, because Touchstone had not received the necessary assurances that Mr Ngole was suitable for the role. 

The remainder of Mr Ngole’s claims failed. 

Conclusion

Whilst this tribunal decision is not binding, it may provide some comfort to charities who are trying to balance the rights of applicants and staff against the rights of service users, particularly as the tribunal accepted Touchstone’s objective of protecting service users.

There are also some important lessons:

1. Remember that applicants for roles can bring claims of discrimination; and
2. If presented with similar challenging situations, charities need to carefully consider what their objectives are. They also need to consider whether their decisions are proportionate and, in particular, whether less intrusive steps could be taken in the first instance. 

For more information, please get in touch with Harriet Broughton directly or contact our dedicated Employment Team.