Social media, personal beliefs and recruitment: Lessons from Ngole v Touchstone Leeds

How far can an employer act on what a candidate has posted online, and where do legitimate concerns tip into unlawful discrimination? The Employment Appeal Tribunal’s recent decision in Ngole v Touchstone Leeds brings these questions into sharp focus.

Background

The case concerned a charity providing mental health and well-being services, which withdrew a conditional job offer from a Christian candidate.

The charity withdrew the offer after conducting a Google search which revealed media reports about litigation concerning the candidate’s Facebook posts in which he described homosexuality and same-sex marriage as sinful several years earlier. The charity considered the candidate’s views posed a “significant risk” to service users and the charity’s reputation and withdrew the offer. The candidate was given no opportunity to respond. 

After the candidate pushed back, the charity invited him to a meeting to seek assurances that his beliefs would not compromise his ability to fulfil the role or to embrace and promote its values. He was told he would be expected to attend transgender and LGBT awareness training and to use correct pronouns.

Unconvinced by the assurances the candidate gave, the charity confirmed its decision to withdraw the offer. 

ET and EAT decisions

The ET held that the initial withdrawal of the job offer constituted direct discrimination because of religious belief. However, it dismissed the claims concerning the follow-up meeting and the final decision not to reinstate the offer, accepting that the respondent’s later decisions were driven by legitimate concerns about whether the claimant could carry out the role without negatively impacting service users.

On appeal, the EAT held that the ET had erred in law in its analysis of the direct discrimination complaints. 

The EAT criticised the ET’s failure to distinguish, for each act complained of, whether it was an objection to the claimant’s protected beliefs (which can never be justified) or an objection to something properly separable from those beliefs, such as the manner in which they were expressed.

Drawing on the Court of Appeal’s landmark decision in Higgs v Farmor’s School, the EAT distilled the analysis into a structured framework: 

1. identify the reason(s) for the treatment
2. determine whether the objection is truly to the manifestation of a belief rather than the belief itself, and, if so,
3. assess whether the response was proportionate by applying the four-stage Bank Mellat test below:
   1. is the objective of the measure sufficiently important to justify limiting a protected right;
   2. is the measure adopted rationally connected to that objective;
   3. could a less intrusive measure have been used without unacceptably compromising the objective; and
   4. does the measure’s contribution to the objective outweigh the impact on the rights of the individual affected.

Noting that the ET did not have the benefit of Higgs at the time of its decision, the EAT remitted the relevant complaints for reconsideration. The ET must now analyse each reason (or group of related reasons) separately and determine whether the treatment was, at least in part, because of the claimant’s protected beliefs rather than something properly separable from them.

Employer insights

As employers continue to navigate conflicting views and beliefs, this case is a useful reminder of several key points:

Avoid impulsive reactions: if a social media search reveals something concerning, resist the impulse to withdraw an offer immediately. Give the candidate an opportunity to respond. The withdrawal here was found to be discriminatory precisely because this fundamental step was omitted. 

Read beyond the headlines: the respondent’s managers relied on news reports but did not read the Court of Appeal judgment, despite a BBC article reporting that the claimant had won his appeal. Take time to understand the full picture. Headlines rarely tell the whole story, and acting on an incomplete understanding of the facts can lead to flawed decision-making.

Focus on role requirements, not protected beliefs: employers can legitimately require staff to carry out the full duties of the role - in this case, meaningful engagement with LGBTQI+ service users and compliance with equal opportunities and anti-discrimination policies. Concerns about suitability should focus on the candidate’s ability to perform the role, not the protected beliefs they hold.

Separate your reasons and document them carefully: the EAT criticised the ET for failing to separate each reason for the treatment and analyse it individually. Employers should ensure their decision-making is rigorously structured and contemporaneously recorded, distinguishing between objections to protected beliefs (unlawful) and objections to specific conduct that may affect role performance (potentially lawful).

Remember proportionality: Any restriction on an employee’s or candidate’s right to manifest their beliefs or express themselves freely must be proportionate. The more severe the consequence, the more robust the justification must be, and the more carefully the employer must consider whether a less intrusive measure is available.

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