Could withdrawing a job offer because of an applicant’s social media posts be discriminatory? Lessons from Ngole v Touchstone Leeds

Pre-employment checks are a crucial part of any recruitment process. But what happens when those checks uncover social media posts by a job applicant which the employer feels are controversial or offensive; or which might relate to a protected belief, but be in conflict with the protected characteristics of colleagues, clients and/or service users? Balancing competing rights in such scenarios is a challenge; and the consequences of getting it wrong can be financially costly, reputationally damaging, and detrimental to staff relations. A recent Employment Appeal Tribunal case highlights just how difficult striking this balance can be.

In Ngole v Touchstone Leeds [2026] EAT 29 (“Ngole”), the EAT looked at the question of whether an employer’s decision to withdraw (and not subsequently reinstate) a job offer was because of a Christian job applicant’s protected religious beliefs (in which case it would be direct discrimination and therefore unlawful), or whether it was because of the way he had manifested those beliefs (in which case, if it could be shown that the manifestation had been objectionable or inappropriate, the decision not to reinstate the job offer may be objectively justifiable if it was a proportionate means of achieving a legitimate aim).

What were the facts of the Ngole case?

Mr Ngole (a Christian social worker) applied for a job as a discharge mental health support worker at Touchstone Leeds; a charity which provides mental health and well-being support services. Approximately 33% of Touchstone’s workforce, and 12% of its service users, are from the LGBTQ+ community. Around 30% of Touchstone’s workforce describe themselves as Christian.

Mr Ngole’s application and interview was successful, and he was offered the role subject to reference checks. However, Touchstone subsequently discovered that Mr Ngole had previously made Facebook posts describing homosexuality and same-sex marriage as a sin. This had led to his removal from a university social work course, and him bringing (successful) proceedings against the university in the Court of Appeal.

Touchstone was concerned that Mr Ngole’s beliefs could pose “significant risk” to its service users and reputation, and that service users might find the comments “upsetting and offensive”. It withdrew the job offer and, when this decision was challenged by Mr Ngole, asked him to attend a second interview to provide assurances that his beliefs would not impact on his ability to carry out the role (and to confirm that he would attend transgender and LGBT awareness training, and respect preferred pronouns). Mr Ngole gave assurances that his beliefs would not impact on his work and that he would attend training. However, the job offer was not reinstated; due to Touchstone’s concerns about the potential impact of Mr Ngole’s beliefs on its service users.

Mr Ngole brought claims for religion or belief discrimination in the Employment Tribunal (“ET”).

What did the Employment Tribunal decide?

At first instance, the ET confirmed that Mr Ngole’s religious beliefs were protected. It held that Touchstone’s initial withdrawal of the job offer, without first seeking assurances from Mr Ngole that service users would not be negatively impacted as a result of his beliefs, was because of the social media posts expressing his protected beliefs and was discriminatory.

However, the ET also found that it had not been discriminatory for Touchstone to subsequently require Mr Ngole to attend a second interview to provide those assurances; nor had it been discriminatory for Touchstone to subsequently not reinstate the job offer. In the ET’s view, Touchstone’s actions here had been objectively justifiable, as a proportionate means of achieving the legitimate aim of protecting the care and welfare of its service users.

Mr Ngole appealed to the Employment Appeal Tribunal (“EAT”).

What did the Employment Appeal Tribunal decide?

The EAT agreed that Touchstone had been entitled, in principle, to ask for a second interview to seek reassurances about how Mr Ngole would treat LGBTQ+ service users were he to be given the role (and that he would undertake applicable equalities training if required).

However, in relation to Touchstone’s decisions relating to (a) requiring the second interview, and (b) subsequently not reinstating the job offer, the EAT found that the ET had failed to identify the reasons for those decisions, and had therefore erred in concluding that they did not amount to discrimination. More specifically, the ET had not determined whether those decisions had been made because of the simple fact of Mr Ngole’s protected religious beliefs, or whether they had been made because of an objectionable or inappropriate manifestation of those beliefs.

If the reason for Touchstone’s decisions was merely that service users might discover the posts, and come to learn that Mr Ngole believed that homosexuality and same-sex marriage were a sin (beliefs that, though some might find offensive and upsetting, were nonetheless protected), those decisions would be because of Mr Ngole’s protected beliefs; they would not be capable of justification, and they would amount to direct discrimination.

Conversely, if the reason for Touchstone’s decision was that Mr Ngole had inappropriately expressed his beliefs, this may be capable of objective justification if proportionate in the circumstances. However, the ET had, firstly, failed to analyse what Touchstone thought its service users might find objectionable about Mr Ngole’s Facebook posts, and whether that was sufficient to make Mr Ngole’s expression of his beliefs distinguishable and separable from the fact of them. The ET had also, secondly, failed to analyse, in light of what Mr Ngole had said at his second interview, whether Touchstone’s decision not to reinstate the job offer was in fact objectively justifiable as a proportionate means of achieving a legitimate aim (following the test established in Bank Mellat v HM Treasury (No 2) [2012] UKSC 39 (“Bank Mellat”) and endorsed in Higgs v Farmor’s School [2025] EWCA Civ 109 (“Higgs”); our article on the latter can be found here.)

The case has been remitted back to the ET for reconsideration, to determine whether Touchstone’s decision to require a second interview, and refusal to reinstate the job offer did, in fact, amount to direct discrimination.

Key considerations for employers

Though this case is yet to be conclusively decided, it does provide some helpful points of clarification, whilst also highlighting the challenges that employers face when dealing with conflicting views in the workplace and/or on social media (and in particular during recruitment exercises).

Importantly, organisations should bear in mind that:

• Beliefs can be protected, even where they are upsetting, offensive or shocking to some. To be protected, a belief must meet the five criteria set out in Granger plc v Nicholson [2010] IRLR 4; which is, in practice, a relatively low threshold. In Ngole it was confirmed that religious beliefs, regarding homosexuality and same-sex marriages being sinful, were protected. However, this does not negate the rights and protections afforded to others (for example, the right not to be harassed in relation to a protected characteristic, such as sexual orientation or gender reassignment), and where there is conflict a careful balance will need to be struck. In Ngole the EAT highlighted that, in those particular circumstances, striking this balance required the employer to carry out a careful assessment of (a) whether the expression of the beliefs in question had in fact been sufficiently objectionable or inappropriate, and (b) the extent to which those beliefs were likely to impact his ability to carry out the role by jeopardising the protections afforded to others.
• Treating someone less favourably because of a protected belief (or their legitimate expression of it) is direct discrimination and cannot be justified. In Ngole the EAT confirmed that the withdrawal of a job offer because of the simple fact that someone holds a protected belief (even one which may be offensive or upsetting to some), will amount to discrimination. However, there is a distinction to be made between the holding and legitimate expression of a protected belief on one hand, and the objectionable or inappropriate expression of a belief on the other (which may negate protection).
• Less favourable treatment because of an objectionable or inappropriate manifestation of a belief may be lawful, if it is objectively justifiable as a proportionate means of achieving a legitimate aim. In Higgs the Court of Appeal highlighted that a belief can be protected even if it is shocking or offensively expressed; however, employees do not have carte blanche regarding what they can say in public, or how they say it. If a belief is – objectively – manifested or expressed in a way that is objectionable or inappropriate, subsequent action that an employer takes as a result may be lawful, but only if it is objectively justifiable. That is to say, if (a) the employer has a legitimate aim that it is seeking to protect (for example, the legal rights of others), and (b) the action taken is a proportionate means of achieving that aim (i.e., the least punitive option possible). This is a relatively high threshold to meet and, as highlighted by the EAT in Ngole, requires a careful analysis of the facts.
• As ever, context and the specific circumstances of each case, will be key. In Ngole, the EAT emphasised that – in those specific circumstances – consideration should have been given to what, exactly, Touchstone’s service users might find objectionable about Mr Ngole’s Facebook posts, and whether that was sufficient to make them distinguishable and separable from the fact of his protected religious beliefs. Fuller consideration should also have been given to the question of whether Touchstone’s treatment of Mr Ngole was objectively justifiable and proportionate. The Court of Appeal in Higgs sets out some helpful guidance on the factors to be taken into consideration when assessing the latter; including the subject matter and content of the beliefs expressed (and their relevance to the employer’s business); the way the beliefs are expressed (their tone and extent) and in what forum (including the reach of the likely audience); whether the expression of beliefs can be linked to the employer (and the extent of any reputational risk associated with this, albeit the fear of reputation risk alone is not sufficient); the nature of the role of the individual involved (both their level of seniority and whether their views are likely to influence their work); and the nature of the organisation and its clients or service users (and whether there is evidence of the individual demonstrating concerning behaviour towards third parties).
• Avoid assumptions, stereotyping and knee-jerk reactions. Employers must be careful not to fall into the trap of stereotyping, and assuming that employees with particular protected beliefs will manifest them in a specific (inappropriate) way; such stereotyping could amount to unlawful discrimination. Similarly, withdrawing a job offer because of social media posts which relate to a protected belief (and which may be controversial, but nonetheless lawful), without first having a discussion about how those beliefs might impact on the candidate’s ability to perform the role, is likely to be discriminatory. Taking action because of a fear that others may object to the mere fact that a job applicant holds a protected belief, is high risk and may well also be unlawful. Instead, organisations should take a measured, objective, proportionate approach. Time should be taken to reflect, and legal advice sought where necessary, before any action is taken.
• Clear policies, fair processes, and appropriate up-to-date training for managers, are all crucial. The case law in this area is rapidly evolving, and it is important that organisations stay on top of both the current legal position and best practice, in order to mitigate risk but also foster positive employee relations.

If you or your team would like further advice or training on any of the issues in this article, please get in touch and our experienced team of employment lawyers would be happy to help.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice.