This month we are, again, looking at the expression of religion and belief in the workplace, as judgments on two further Employment Tribunal cases on the topic have been handed down: Ngole v Touchstone Leeds [ET 1805942/2022] and Orwin v East Riding of Yorkshire Council [ET 6000146/2022].
The continued flurry of cases in this area, as discussed in our June edition of Need to Know, illustrates just how complex it is for employers to navigate this topic. Although these two decisions are not legally binding (unlike Employment Appeal Tribunal judgments), they follow the broad theme of other recent decisions, which is that employers must deal with religion and belief discrimination risks with caution and proportionality.
The facts – Ngole v Touchstone Leeds
In this case, the Tribunal held that Touchstone Leeds (“Touchstone”), a charity who provide mental health services (and who undertake a significant proportion of work with people in the LGBTQI+ community), had directly discriminated against Mr Ngole, a Christian job applicant, by withdrawing an initial job offer based on Facebook posts he had made which discussed homosexuality and same sex marriage in negative terms. Mr Ngole had applied for the role of mental health support worker.
After retracting its provisional offer, and following some challenge from Mr Ngole as a result, Touchstone invited Mr Ngole to a further meeting to discuss the issue. From Touchstone’s perspective, the purpose of this second meeting was to afford Mr Ngole the opportunity to demonstrate that he would embrace Touchstone’s values (which include the promotion of LGBTQI+ rights) and his suitability for the role and for him to provide assurances that his personal views would not compromise the role applied for. The meeting was not successful and Touchstone decided not to reinstate the provisional job offer which had been made to Mr Ngole.
Consequently, Mr Ngole brought claims in the Tribunal for direct and indirect discrimination and harassment, stating that Touchstone had discriminated against him under the Equality Act 2010 on the grounds of religion or belief.
The decision
The Tribunal considered Mr Ngole’s rights under the European Convention on Human Rights (“ECHR”) and the Equality Act and found that Touchstone’s objective of protecting its staff and vulnerable service users was legitimate and persuasive. However, it went on to find that the initial withdrawal of the job offer (prior to the second meeting) was not a proportionate means of achieving its legitimate aim and did therefore limit Mr Ngole’s freedom of expression.
In reaching its decision, the Tribunal referred itself to the Supreme Court decision in Bank Mellat v HM Treasury [2013, UKSC 38]. In that case, the Supreme Court established a four-stage test for determining whether a measure taken by one party which limits another’s rights is proportionate or whether it infringes on that person’s rights.
To summarise, the test for justification focuses on four questions, as follows:
“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(2) whether the measure is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”
Applying this test, the Tribunal found that Touchstone could have achieved its aims via less intrusive means – for example, by inviting Mr Ngole to provide assurances before it withdrew the provisional offer.
As such, Mr Ngole’s claim for direct discrimination in relation to the withdrawal of the initial job offer was upheld although the rest of his claims, applying the Bank Mellat test, failed. This was because the Tribunal found that the balancing act fell in favour of Touchstone as inviting Mr Ngole to a second interview and declining to reinstate the job offer were a proportionate means of achieving its legitimate aim.
The facts – Orwin v East Riding of Yorkshire Council
In contrast to Ngole, in this case the Tribunal dismissed Mr Orwin’s claims against his former employer, East Riding of Yorkshire Council (the “Council”), for direct discrimination, wrongful dismissal and unfair dismissal in relation to his gender critical beliefs.
In brief, the Council introduced a new policy inviting staff to add pronouns to their email signatures. The policy did not specify a list of acceptable pronouns, and individuals had the choice not to add any pronouns. Mr Orwin objected to the policy on the basis that he believed it promoted a political ideology of self-identification which he disagreed with. In protest, he added the words “XYchromosomeGuy/AdultHumanMale” to his email signature. Management asked him to remove these words from his signature on numerous occasions but he refused to do so and was subsequently dismissed.
The decision
Applying the test established in the case of Higgs v Farmor’s School (a 2023 Employment Appeal Tribunal case), the Tribunal found that the manifestation of Mr Owin’s beliefs (rather than the belief itself) was not protected, as there was [a lack of a/not a] sufficiently close nexus between the email signature and his gender critical beliefs. It noted that adding the aforementioned wording to his signature was a deliberately provocative act, as opposed to having been done out of a need to adhere to his beliefs. In its judgment, the Tribunal also found that Mr Orwin was mocking the idea of gender self-identification.
The Tribunal therefore found that the Council’s decision to dismiss Mr Orwin was not discriminatory, as it was not related to him holding those beliefs but, instead, in response to his inappropriate manifestation of his beliefs.
In reaching its decision, the Tribunal considered the proportionality of the Council’s response. Of note was the fact the Claimant had a public-facing role and that he appeared to be using the Council’s resources and platform to be deliberately provocative. As such, the Tribunal concluded that “the risk of reputational damage and impact on potential service users was much higher in this case than in cases where an employee has made their views known through their own social media”. This is because Mr Orwin using the Council’s platform to display his views could create the impression that that the Council held or condoned such views.
Key takeaways
Both these cases provide an interesting insight into how tribunals may navigate the often complicated topic of expression of religion and belief in the workplace. Of particular interest is the distinction drawn in Orwin between holding and manifesting particular beliefs in the workplace and the relevant factors which guided the Tribunal in its decision making, such as the context and forum in which the particular beliefs have been expressed.
These cases clearly highlight the complicated exercise which employers need to undertake when balancing competing rights in the workplace. On one hand, employees have the right to freedom of expression and belief whereas, on the other, employers have a duty to maintain a safe and inclusive environment for their staff and clients.
It is clear from both Ngole and Orwin, that the key to any decision making in this context is proportionality as that is the predominant factor which the tribunal will use in determining whether any limitations on an individual’s rights are a justifiable means of achieving an employer’s legitimate aim. Employer would therefore be wise to approach this exercise with caution.