Social work student wins appeal against dismissal for views on sexuality

An important decision of the England and Wales Court of Appeal, The Queen (on the application of Ngole) -v- The University of Sheffield [2019] EWCA Civ 1127 (3 July 2019) has ruled that a social work student, Felix Ngole, should not have been dismissed from his course on the basis of comments he made on social media sharing the Bible’s view on homosexuality. The court says in its summary at para [5], point (10):

The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds.

The decision is a welcome one, which will hopefully provide guidance in similar situations.

The background to the case was noted in my previous blog post on the case, here. I encourage readers to go there for the details of the original post and the subsequent disciplinary proceedings. Perhaps this summary will do for the moment:

So what dreadful behaviour had Mr Ngole engaged in, such that it could be seen now (at the end of his first year of a 2-year professional course) that he was not fit to practice as a social worker? Perhaps it is best to quote directly from the Deputy High Court Judge, Ms Rowena Collins Rice. Mr Ngole had read, on a website hosted by the US broadcaster NBC, about the stance taken in Kentucky by registrar Kim Davis, who declined to register a same sex marriage and spent time in jail for doing so. (See my earlier post on these events at the time.) Judge Rice commented:

[7] His first post was to the effect that same-sex marriage was a sin. Challenged by another poster to demonstrate that the Bible said so, he responded by citing a number of Biblical passages.  The public website conversation continued at some length, with a number of contributors, and Mr Ngole contributed around twenty or so very short posts before withdrawing from it.  Among the posts was a reference to same-sex marriage as detestable to God; an observation that Homosexuality is a sin, no matter how you want to dress it up; a post including the devil has hijacked the constitution of the USA.  This is a country that was built on the values of Christianity.  Now it’s worse than a country worshipping idols; quotations from the Biblical book of Leviticus describing same-sex sexual relations as an abomination; other Biblical quotations on the subject;  general references to the Bible as condemning ‘homosexuality’; an observation that It is a wicked act and God hates the actGod hates sin and not man; and an observation that He will also judge all those who indulged in all forms of wicked act such as homosexuality.

It is possible that some or all of these comments could have made with more sensitivity. But Mr Ngole had been asked by someone else to explain the Bible’s views on the matter, and the language he used seems to have been drawn from the Bible. He was posting in a public forum, not in any way associated with his professional training as a social worker, or in any way which would obviously suggest that his personal views would lead to him showing hatred towards, or discrimination against, same-sex attracted person. Indeed, the various committees all commented that there was no evidence showing that Mr Ngole had, in his personal interactions, showed any animosity or contempt for same sex attracted persons- see e.g. para [107].

Yet when these online remarks were brought to the attention of the University authorities, they investigated and concluded that he was not fit to be a social worker

In this appeal decision, the Court of Appeal (Irwin & Haddon-Cave LJJ and Sir Jack Beatson), while critical to some extent of both sides, finds that the University had become so “entrenched” in its position at an early stage that they did not properly help Mr Ngole to see a way out of the problems they saw as caused by his posting. Nor was the penalty imposed (dismissal from the course, and in effect a complete bar from social work practice) a “proportionate response” to the situation.

At one point they explicitly noted a concession by counsel for the University which they regarded as highly problematic. At [123] they say:

Ms Hannett helpfully clarified the University’s position as regards what we consider to be a fundamental point: she made it clear that any expression of disapproval of same-sex relations – however mildly expressed – which could be traced back to the person making it, would be a breach of
the professional guidelines for social workers as far as the University was concerned. (emphasis added)

The Court noted the astonishing breadth of such a proposition. In effect it would mean that a Christian social worker, “even expressing these views in a church” (see [125]) could be removed from their position. And a stance like this could not logically be confided to social workers:

If social workers and social work students must not express such views, then what of art therapists, occupational therapists, paramedics, psychologists, radiographers, speech and language therapists: all professions whose students and practitioners work under the rubric of the same general regulations? What of teachers and student teachers, not covered by the HCPC regulations, but by a similar regulatory regime?

Para [126]

The width of this opinion demonstrated, in the Court’s view, that it was wrong. They go on to say:

In our view the implication of the University’s submission is that such religious views as these, held by Christians in professional occupations, who hold to the literal truth of the Bible, can never be expressed in circumstances where they might be traced back to the professional concerned. In practice, this would seem to mean expressed other than in the privacy of the home. And if that proposition holds true for Christians with traditional beliefs about the literal truth of the Bible, it must arise also in respect of many Muslims, Hindus, Buddhists and members of other faiths with similar teachings. In practice, if such were a proper interpretation of professional regulation supported by law, no such believing Christian would be secure in such a profession, unless they resolved never to express their views on this issue other than in private. Even then, what if a private expression of views was overheard and reported? The postings in question here were found following a positive internet search by the anonymous complainant. What if such statements had been revealed by a person who had attended a church service or Bible class? (emphasis added)

Para [127].

In short, they conclude that this extreme view, “such a blanket ban on the freedom of expression of those who may be called “traditional believers””, cannot be “proportionate” to the aim of protecting persons from discrimination- see [129]. Indeed, they say that the relevant conduct policy cannot be interpreted so broadly. The specific code referred to “comments … [which] were offensive, for example if they were racist or sexually explicit”- but the comments made by Mr Ngole were clearly neither racist nor sexually explicit. He was not shown to have actually discriminated against a same sex attracted person in any way. The view that the University took, the Court held, was a disproportionate interference with Mr Ngole’s right of free speech, as protected by art 10 of the European Convention on Human Rights.

The Court also concluded that the sanction imposed, loss of professional standing altogether, was far too heavy in response to what had been done- see the discussion at paras [131]-[138]. Their final order was that the matter must be sent back to a differently constituted disciplinary committee. There was a strong hint that by accepting some guidance about appropriate speech (for example, perhaps, by making it clear in future that his religious views on homosexuality would not in any way interfere with his service of clients), Mr Ngole might be allowed to return to his studies.

Finally, the parallels between this case and the current proceedings in Australia involving rugby player Israel Folau are quite striking. (For my previous comments on the Folau case, see here and here.) In each case an evangelical Christian making a comment on social media about the Bible’s view on homosexuality was punished for not abiding by a broadly worded “code of conduct”. In Mr Folau’s case the media have regularly referred to his close paraphrase of the Bible’s teachings as “homophobic”, by which they seem to mean “discriminatory”. While the decision of the Court of Appeal in Mr Ngole’s case is of course not binding on any Australian court called on to decide Mr Folau’s case, the words of the Court at [115] should be kept in mind:

The mere expression of religious views about sin does not necessarily connote discrimination.

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