At a glance
- Articles 9 and 10 of the European Convention of Human Rights (ECHR) provide the right to freedom of expression and the right to freedom of thought, expression, and religion.
- This case concerned the expression, on a public social media platform, of religious views disapproving of homosexual acts by a student enrolled on a two-year MA Social Work course at the University of Sheffield (University). The student was subject to disciplinary proceedings and subsequently removed from his course, on fitness to practice grounds. He sought judicial review of that decision.
- The Court of Appeal (CA) allowed the student’s appeal and found that the University’s disciplinary proceedings were flawed in a number of respects. It noted that the University had wrongly confused the expression of religious views with the notion of discrimination. Further, the University’s sanction was disproportionate – instead of exploring and imposing a lesser penalty, such as a warning, it imposed the extreme penalty of dismissal from the course which was inappropriate in all the circumstances.
Background
The Appellant (Ngole) was a devout Christian for whom the Bible was the authoritative word of God. In September 2014, he enrolled as a mature student on the MA Social Work course at the University. Successful completion of this course would have led to registration and practice as a qualified social worker. Upon enrolment, the Appellant signed an agreement concerning the Health and Care Professionals Council (HCPC) student guidance on standards of conduct and ethics.
In September 2015, the Appellant posted a series of comments on social media in relation to a prominent news story regarding an American registrar who had refused to issue marriage licences to same-sex couples. The Appellant’s comments expressed negative views towards homosexuality and biblical quotations with strong language such as referring to homosexuality as an “abomination”.
After learning of these comments, the University investigated the actions and following various disciplinary and committee hearings removed the Appellant from his course. The reasons can be summarised as the Appellant’s (i) insufficient insight into the effect of publicly posting his views would have on his ability to carry out a role as a social worker (ii) extremely poor judgement in posting comments which transgressed boundaries and may have caused offence to some individuals (iii) admitted familiarity with social media and HCPC guidance and (iv) the fact he had failed to give evidence that he would refrain from presenting his views in the same way in the future. The Appellant appealed to the University Senate but was unsuccessful.
The Appellant subsequently sought judicial review of the decision. The first instance judge however found that a fair balance had been struck by the University and declined to interfere with the decision. The Appellant appealed the decision to the CA.
Outcome
The CA allowed the appeal finding that the disciplinary proceedings were flawed and unfair to the Appellant. The case was returned to the University’s disciplinary body for a fact-finding hearing.
In the CA’s view, the University had adopted a position from the outset of disciplinary proceedings which was untenable, namely that any expression of disapproval of same-sex relations (however mildly expressed) on a public social media or other platform which could be traced back to the person making it, was a breach of the professional guidelines. This stance was not in line with the relevant code of conduct and guidelines. In the view of the CA such a blanket ban could not be proportionate.
The CA noted that the Appellant had adopted a position which was equally untenable, namely that the University had no business interfering with his freedom of expression, and it was his right to express his religious views. This was also not in accordance with the relevant HCPC professional code of conduct. The right to freedom of expression is not an unqualified right – professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes. Just because a belief is said to be a religious belief, it does not give a person subject to professional regulation the right to express such beliefs in any way he or she sees fit.
The CA found that at no stage did the University make it clear to the Appellant that it was the manner and language in which he had expressed his views that was the real problem. At no stage did it discuss or give any guidance as to how he might more appropriately express his religious views in a public forum. The University had been too quick to decide that the Appellant was entrenched in his position and that he lacked insight into the effect his postings would have.
The CA found that the University had wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds does not necessarily connotate that the person expressing such views will discriminate on such grounds. The CA noting that there was no evidence to suggest that the Appellant had or would discriminate on the basis of the comments made.
The CA found that the University’s approach to sanction was disproportionate. Instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of immediate dismissal which was inappropriate in all the circumstances.
It is important to note that, whilst the CA allowed the appeal, it emphasised that neither of the parties’ actions were in accordance with the relevant professional code and guidelines. The University’s position that any expression was a breach of the professional guidelines was wrong but, similarly, the Appellant’s view the University had no business interfering with his freedom of expression and that he had a right to express his religious views unequivocally was inconsistent with the legislative aims.
“This case highlights that when dealing with conflict of belief situations it is important to avoid assumptions about an employee’s views or about what an individual might do.”
What does this mean for employers?
The Court of Appeal expressly state from the outset that this was a not a straightforward case. It is one that cannot be considered without a full appreciation for its context and the fact specific nature of events. However, it is useful in illustrating the approach to balancing the right to freedom of expression, protected characteristics, and regulatory obligations. It highlights that employers must not make assumptions about an employee’s views or about what an individual might do, and that it cannot be assumed without evidence that individuals are homophobic or that they will treat homosexual people differently in the workplace.