Ngole v Touchstone: EAT Clarifies the Difference Between Religious Belief and Its Expression

The Employment Appeal Tribunal decision in Ngole v Touchstone provides important guidance on the distinction between a protected religious belief and the way in which that belief is expressed. The case highlights the care employers must take when making recruitment decisions based on an applicant’s social media activity, while also reinforcing the protection afforded to individuals holding lawful religious beliefs.

Case Facts  

Mr Ngole, a Christian social worker, applied for a role as a Discharge Mental Health Support Worker at Touchstone.

Following a successful interview process, Mr Ngole was offered the job, subject to satisfactory references and pre-employment checks. During its pre-employment screening, Touchstone identified several social media posts made by Mr Ngole, including posts expressing the view that same-sex marriage was sinful. Touchstone subsequently withdrew the job offer citing concerns about whether Mr Ngole’s publicly expressed views were compatible with its organisational values and commitment to inclusion. Following a second interview, Touchstone confirmed the withdrawal.

Mr Ngole brought claims of direct discrimination, indirect discrimination and harassment on the grounds of religion or belief. The Employment Tribunal dismissed the majority of his claims. The case subsequently proceeded to the Employment Appeal Tribunal.

Employment Appeal Tribunal (EAT) decision 

The EAT allowed Mr Ngole’s appeal in relation to the direct discrimination claim and remitted that aspect of the case to the ET for reconsideration. The EAT found that the Tribunal had not adequately considered whether Touchstone’s decision was motivated by Mr Ngole’s protected religious beliefs or by concerns regarding the way those beliefs had been expressed publicly. Where an employer’s concern relates to the expression of a belief rather than the belief itself, the Tribunal must consider whether there was an objectively justifiable basis for treating the individual differently. While unfavourable treatment due to a protected belief can never be justified, treatment based on an objectionable manifestation of that belief may, in certain circumstances, be capable of justification. The EAT dismissed all other grounds of appeal.

Practical lesson for employers  

• Ensure decisions are based on conduct or expression, rather than the existence of a protected belief itself.

• Consider whether concerns relate to reputational risk, workplace impact or safeguarding issues, and whether those concerns can be objectively justified.

• Keep a clear written record of the decision-making process and the factors taken into account.

• Consider proportionate alternatives before withdrawing an offer or taking disciplinary action.

Practical points for employees and job applicants 

• Holding a religious or philosophical belief may attract protection under the Equality Act 2010. However, the way in which beliefs are expressed, particularly on social media, may still have workplace consequences depending on the circumstances.

• Individuals should be mindful that publicly available posts may be reviewed during recruitment or employment-related investigations.

The EAT’s decision serves as a reminder that the Equality Act 2010 protects individuals from less favourable treatment because of their religious or philosophical beliefs. However, employers may still be entitled to consider the manner in which those beliefs are expressed where there are legitimate workplace concerns. The challenge lies in ensuring that decisions are based on objective evidence and careful reasoning rather than disagreement with the belief itself.

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