Mr F Ngole v Touchstone Leeds: 1805942/2022
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 2024 |
| Date | 21 June 2024 |
| Published date | 27 June 2024 |
| Court | Employment Tribunal |
| Citation | 1805942/2022 |
Case Number: 1805942/2022
10.5 Reserved judgment with reasons – rule 61 March 2017
1
EMPLOYMENT TRIBUNALS
Claimant: Mr F Ngole
Respondent: Touchstone Leeds
Heard at Leeds On: 2, 3, 4, 5 and 8 April 2024
9 and 10 April 2024 (in Chambers)
Before: Employment Judge Brain
Members: Mr W Roberts
Mr M Taj (2and 3April 2024)
Mr M Brewer (4, 5, 8, 9 and 10 April 2024)
Representation
Claimant: Mr M Phillips, solicitor advocate
Respondent:Mr P Wilson, counsel
RESERVED JUDGMENT
The Judgment of the Employment Tribunal is that:
1. The complaint of direct discrimination because of the claimant’s religion or belief
(brought pursuant to section 13 when read with section 39(1) of the Equality Act
2010) succeeds in part upon the respondent’s withdrawal of the conditional job
offer on 10 June 2022. The remaining complaints of direct discrimination fail and
stand dismissed.
2. The respondent’s occupational requirement defence to the successful direct
discrimination claim (made pursuant to paragraph 9 of schedule 1 to the 2010
Act) fails.
3. The complaints of harassment related to the claimant’s religion or belief (brought
pursuant to section 26 when read with section 40(1)(b) of the 2010 Act) fail and
stand dismissed.
4. The complaints of indirect discrimination in relation to the claimant’s religion or
belief (brought pursuant to section 19 when read with section 39(1) of the 2010
Act) fail and stand dismissed.
Case Number: 1805942/2022
10.5 Reserved judgment with reasons – rule 61 March 2017
2
REASONS
Introduction and preliminaries.
1. The claimant is a Christian. He is a qualified social worker. He qualified in 2021.
2. In April 2022 he applied for a role with the respondent as discharge mental health
support worker, working at Pinderfields Hospital in Wakefield. He was offered the
role on 19 May 2022 (subject to a clear DBS certificate and satisfactory
references).
3. Following a Google search carried out by the respondent, the conditional job offer
was withdrawn on 10 June 2022. The respondent’s withdrawal was without any
discussion with the claimant. At the claimant’s behest, there then followed a
meeting to discuss matters which was held on 11 July 2022. The respondent
maintained their withdrawal and did not reinstate the conditional offer.
4. Arising from this is a claim about whether the respondent’s actions amount to
religion or belief discrimination or harassment following what was uncovered about
the claimant’s religious views (particularly about homosexuality and same-sex
marriage) in the Google search.
5. The Equal Treatment Bench Book (April 2023) says at paragraph 77 of chapter 12
that. “Although different identities are involved, transgender people and lesbian,
gay and bisexual people often campaign together about discrimination, and it is
common to hear the collective term, ‘LGBT.’ Many research papers also look
collectively into issues of discrimination against these groups. The term ‘LGBT’ is
sometimes extended by adding Q (queer or questioning), A (asexual), I (intersex)
or more generically, simply a+.” The Tribunal will in this judgment adopt the term
‘LGBTQI+’ as that is the term adopted by the respondent in their evidence in chief.
6. The case benefited from a preliminary hearing for the purposes of case
management. This came before Employment Judge Buckley on 6 February 2023.
She identified the issues in the case and made case management orders. The
issues to which the case gives rise are in paragraph 164. Suffice it to say at this
stage that it was recorded in her case management order that the claimant pursues
the following claims under the Equality Act 2010:
6.1. Direct religion or belief discrimination.
6.2. Indirect discrimination in relation to religion or belief.
6.3. Harassment related to religion or belief.
7. It was recorded by Employment Judge Buckley that there was an issue of
jurisdiction, that being whether the claimant’s complaints were brought within the
limitation period in section 123 of the 2010 Act. In his closing submissions, Mr
Wilson (the respondent’s counsel) accepted that the claimant’s complaints had
been presented to the Tribunal within the relevant limitation period. The Tribunal
is therefore not concerned with any issue of jurisdiction.
8. Employment Judge Buckley listed the case for hearing over five days between 10
and 14 July 2023. The matter was listed before an Employment Tribunal panel
consisting of the Employment Judge, Mr Roberts and Mr Taj. The matter was
adjourned on 10 July 2023. This is because an issue arose about the parties’
Case Number: 1805942/2022
10.5 Reserved judgment with reasons – rule 61 March 2017
3
wishes to adduce expert evidence. An Order was made granting permission to
each party to rely upon expert evidence. The matter was then re-listed for hearing
in April 2024.
9. The Tribunal amended the hearing timetable which had been set by Employment
Judge Buckley to take account of this development. The time allocation was
increased from five days to a seven days’ listing.
10. The timetable provided for three hours for the Tribunal to read in and then two
hours on the first day to start the claimant’s evidence. Due to the greater volume
of material than had been anticipated, the Tribunal directed (on the morning of 2
April 2024) that the Tribunal would take all of the first day for reading in. Mr Phillips
and Mr Wilson both confirmed that the issues remained as per those recorded by
Employment Judge Buckley at the case management hearing of 6 February 2023.
11. On the morning of 3 April 2024, the claimant made an application that Mr Taj
recuse himself from hearing the case. This was upon the basis of material
discovered by the claimant following an internet search which revealed that Mr Taj
had been president of the TUC between 1 September 2013 and 31 August 2014.
During that time, he had supported the TUC’s LGBTQI + Conference which was
held in June 2014. At the 146th Annual TUC Conference held later in 2014, a
motion (known as ‘motion 76’) was carried with Mr Taj’s personal involvement.
This motion advocated a position that it was time to “unring the bell on religious
zealotry.” The Tribunal understands this to essentially advocate that religious
orthodoxy of any kind should be repudiated.
12. It would, frankly, be a poor trade union that does not advocate for equality of
treatment of all before the law. However, the Tribunal agreed with Mr Phillips’
submissions that the TUC’s stance at the June 2014 conference and then at the
annual conference went beyond advocating for equality of treatment (to which
there can be no objection) and crossed the line into campaigning.
13. The claimant applied for Mr Taj’s recusal upon the basis of apparent bias. There
was no suggestion of actual bias on his part. The application for recusal was
therefore based on apparent bias, as defined by Lord Hope of Craighead at
paragraph 103 of Porter v Magill [2002] AC 357 HL where he said, “The question
is whether the fair minded and informed observer, having considered the facts,
would conclude that there was a real possibility that the Tribunal was biased.” The
application was upon the basis that Mr Taj’s support for LGBTQI+ rights ran
counter to the claimant’s Christian orthodox beliefs.
14. A very similar issue had arisen in Higgs v Farmor’s School(No 2) [2023] EAT
45. In that case, a lay member of the Employment Appeal Tribunal had held a
senior position in an education union whose views were diametrically opposed to
those of the claimant (Ms Higgs). The union had adopted a campaigning stance
upon the issue. It was held that a reasonable observer would conclude that there
was a real possibility that he would unfairly regard Ms Higgs’ case with disfavour.
It was difficult to see any basis upon which Higgs could be distinguished from the
instant case. Accordingly, the decision was taken that Mr Taj recuse himself from
hearing the case.
15. The recusal application took up most of the second day of the hearing on 3 April
2024. Fortunately, Mr Brewer was available at short notice to sit. The Employment
Judge is obliged to him for the efforts made by him to read into the case late in the
afternoon and into the evening of 3 April 2024. His diligent work enabled the
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