The Employment Appeal Tribunal (EAT) has highlighted the importance of clear and structured reasoning when employers make decisions involving protected beliefs. Tribunals must identify the real reason or reasons for each employer decision and assess those reasons separately. Where that reasoning is unclear, a tribunal may need to reconsider whether the treatment was because of the belief itself or something properly distinct from it.
Background
Mr Ngole, a practising Christian and qualified social worker, applied for a mental health support role with Touchstone Leeds. The charity offered him the role subject to satisfactory references. When concerns arose about those references, Touchstone carried out an online search and found media coverage of Mr Ngole’s earlier dispute with a university. That dispute followed social media posts in which he described homosexuality and same-sex marriage as sinful.
Touchstone withdrew the job offer. After Mr Ngole challenged that decision, it invited Mr Ngole to attend a second interview so he could address concerns about how he would work with LGBTQIA+ service users and colleagues, and comply with the charity’s policies. After that meeting, Touchstone decided not to reinstate the offer.
Mr Ngole brought claims alleging direct discrimination because of his religion or belief. The tribunal found that Touchstone directly discriminated against him when it withdrew the original offer. However, it dismissed his complaints about the second interview and the final decision not to appoint him. The tribunal considered that Touchstone was not concerned about his beliefs but about their impact on its service users.
The EAT’s findings
The EAT held that, in relation to the claims it dismissed, the tribunal did not properly analyse Touchstone’s reasoning. In cases involving religion or belief discrimination, tribunals must identify the real reason or reasons for each alleged act of treatment. They must then analyse each decision separately. Where an employer relies on multiple concerns, the tribunal must consider each one individually rather than treating them as a single explanation.
The tribunal should also determine whether the employer’s actions were because of the individual’s protected beliefs, the way those beliefs had been expressed, or some other factor properly separable from the belief itself.
In this case, the tribunal did not explain clearly why Touchstone required Mr Ngole to attend a second interview or why it ultimately refused to reinstate the job offer. In particular, it did not analyse the different concerns that may have influenced those decisions.
For example, the employer had raised concerns about:
- how Mr Ngole might express his views when working with vulnerable service users and colleagues; and
- the possibility that service users might discover his earlier comments through an online search.
The EAT held that these different concerns required separate analysis. In particular, where an employer relies on the potential reaction of others to an employee’s views, tribunals must consider what aspect of those views prompted the concern and whether the objection relates to the belief itself or something distinct from it.
The EAT emphasised that employers can legitimately explore whether a candidate will be able to carry out a role in line with organisational policies and professional expectations. In principle, it was therefore open to Touchstone to seek reassurance about whether Mr Ngole would be able to support all service users, work with all colleagues and comply with workplace policies.
However, the tribunal had not clearly analysed whether the employer’s concerns related to how Mr Ngole might perform the role or whether they were, in reality, based on the beliefs he held.
Because of these shortcomings in the tribunal’s reasoning, the EAT remitted part of the case to the same tribunal so it could analyse the reasons for the later recruitment decisions more closely. The tribunal’s earlier finding that withdrawing the initial job offer amounted to direct discrimination was left unchanged.
Practical implications for employers
For employers, the judgment highlights the importance of careful and structured decision-making in recruitment, particularly where concerns arise about how a candidate’s protected beliefs may affect service delivery or workplace interactions.
Where protected beliefs may affect an individual’s ability to perform a role, employers should ensure that their reasoning is clear and focused on the requirements of the job. There are several steps employers may wish to consider:
- Treat each decision separately. Record the reasoning for each step in the process, such as withdrawing an offer, inviting a candidate to a further interview or deciding not to appoint.
- Keep the reasoning tied to the role. Link concerns directly to the duties of the post, professional standards and expected workplace behaviour.
- Distinguish belief from conduct. Focus on how someone will perform the role rather than simply on the fact that they hold a protected belief.
- Treat third-party reactions with caution. If concerns arise about how service users, colleagues or the public may react to an individual’s views, consider carefully what aspect of those views is driving the concern and whether it is genuinely connected to the role.
- Test concerns through discussion. Ask the candidate directly about professional boundaries, service delivery and compliance with policies rather than relying on assumptions.
- Keep a clear record. Document what concerns arose, what questions you asked, how the candidate responded and why you reached the final decision.
Employers can and should protect service users and maintain inclusive services. At the same time, they must be able to show clearly how their decisions relate to role requirements and expected conduct rather than the existence of a protected belief. Clear and contemporaneous reasoning will carry more weight than explanations provided at a later date.
