R (on the application of Ngole) V University of Sheffield [2019] EWCA Civ 1127
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R (on the application of Ngole) v University of Sheffield [2019] EWCA Civ 1127 concerned an appeal by Mr Ngole, a second-year MA Social Work student, against the dismissal of his judicial review challenge to his removal from the course following disciplinary proceedings arising from his Facebook postings expressing Biblical views on homosexuality.
Mr Ngole had been enrolled on a two-year MA Social Work course at the University of Sheffield, a professionally regulated course overseen by the Health and Care Professions Council. In September 2015, he posted approximately twenty comments on a public Facebook discussion about a news story involving an American registrar imprisoned for refusing to issue marriage licences to same-sex couples. His postings included statements such as “same sex marriage is a sin” and “homosexuality is a sin, no matter how you want to dress it up”, as well as direct Biblical quotations including “If a man lies with a male as with a woman both of them have committed an abomination” from Leviticus. The postings were brought to the University’s attention by an anonymous complaint.
The University initiated fitness to practise proceedings. At an initial interview on 11 November 2015, Mr Bosworth, the investigating officer, told Mr Ngole that his postings were “incongruous with values of the Social Work profession” and in breach of HCPC regulations. Mr Ngole responded that if he could not conform to University regulations he would rather be removed than not follow the Bible. On 15 December 2015, Mr Ngole declined to attend further meetings, asserting his right as a Christian to share his views when called upon to do so without fear of reprisal. The Fitness to Practise Committee hearing took place on 26 January 2016, with Mr Ngole accompanied by Pastor Omooba. On 8 February 2016, the Committee issued its decision excluding Mr Ngole from the course, citing his insufficient insight into the effect of publicly posting his views on his ability to carry out a social worker role, his extremely poor judgement in posting comments which may have caused offence, and his failure to give evidence that he would refrain from presenting his views in the same way in the future. The decision found breaches of professional requirements to keep high standards of personal conduct and not to damage public confidence in the profession.
Mr Ngole appealed to the University Senate Appeals Committee. During the hearing on 28 March 2016, Pastor Omooba suggested that caution and diplomacy were important and that if the University wanted Mr Ngole to be more discreet in social media postings, he would comply with guidelines, though none were offered. The Appeals Committee upheld the exclusion on 31 March 2016, finding that Mr Ngole’s postings were inappropriate in the context of the HCPC code of conduct, that he had failed to offer any insight or reflection on how his public postings may negatively affect the public’s view of the social work profession, and that he had failed to acknowledge or respect the relevance of the HCPC code of conduct. The Office of the Independent Adjudicator subsequently found the University had followed its procedures and there was no evidence of bias.
Mr Ngole sought judicial review on grounds that the decision was an unlawful interference with his rights under Articles 9 and 10 of the European Convention on Human Rights and that the decision was arbitrary and unfair. Rowena Collins Rice, sitting as a Deputy High Court Judge, dismissed the claim on 27 October 2017. She found that the case engaged Article 10 rather than Article 9, as the postings were a religiously motivated contribution to political debate rather than a protected manifestation of religion. The judge held that the interference was prescribed by law, noting that the regulatory material was sufficiently clear and that Mr Ngole had been on notice regarding conduct outside the programme and use of social media. She found that the University’s aims were legitimate, namely maintaining public confidence in the social work profession and ensuring service users were treated with dignity and without discrimination. On proportionality, the judge accepted that the postings alone would not have justified removal, but found that Mr Ngole’s reaction to the process and his lack of insight and reflection called his fitness to practise into question. She concluded that a fair balance had been struck and that the court should not substitute its judgement for that of professionals on questions of risk to service users.
On appeal, the Court of Appeal allowed the appeal. Lord Justice Irwin, Lord Justice Haddon-Cave and Sir Jack Beatson delivered a joint judgment identifying multiple flaws in the disciplinary proceedings.
The court held that both sides had adopted extreme and polarised positions from the outset. The University adopted an untenable position that any expression of disapproval of same-sex relations, however mildly expressed, on a public platform traceable to the person making it was a breach of professional guidelines. This stance was not in accordance with the HCPC professional code and guidelines, which did not prohibit the use of social media to share personal views but simply stated that action might be required if comments were offensive, for example if racist or sexually explicit. In response, Mr Ngole adopted an equally untenable position that the University had no business interfering with his freedom of expression and that he would continue to express his religious views just as before whatever the consequences. This reaction, while perhaps understandable, was also not in accordance with the relevant professional code and guidelines.
The Court of Appeal emphasised that the right to freedom of expression is not unqualified. Professional bodies are entitled to place reasonable and proportionate restrictions on those subject to their professional codes, and a person subject to professional regulation does not have the right to express religious beliefs in any way he or she sees fit simply because they are said to be religious beliefs.
The court found that at no stage did the University make clear to Mr Ngole that it was the manner and language in which he had expressed his views that was the real problem, in particular his use of Biblical terms such as “wicked” and “abomination” which were liable to be understood by many users of social services as extreme and offensive. The University never discussed or gave guidance as to how Mr Ngole might more appropriately express his religious views in a public forum, nor made clear that his theological views about homosexuality were no bar to practising as a social worker provided those views did not affect his work or mean he would or could discriminate.
The University quickly formed the view that Mr Ngole had become extremely entrenched and lacked insight into the effect his actions would have, leading it rapidly to conclude that only suspension was appropriate. The court held that the University failed to appreciate two matters. First, it failed to appreciate that Mr Ngole’s apparent intransigence was an understandable reaction to being told something incomprehensible, namely that he could never express his deeply held religious views in any manner on any public forum. Second, it failed to appreciate that a blanket ban on expression of views was not in accordance with the HCPC professional code or guidance. In these senses, it was the University and its processes which could be said to lack insight.
The court held that it was the University itself which became entrenched. It failed to explore the possibility of finding middle ground despite this being suggested by Pastor Omooba, and unfairly put the onus entirely upon Mr Ngole to demonstrate that he had insight and could mend his ways.
The University wrongly confused the expression of religious views with the notion of discrimination. The court held that the mere expression of views on theological grounds does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence that Mr Ngole had never discriminated on such grounds in the past and was not likely to do so in the future.
The University gave different and confusing reasons for suspending Mr Ngole. Initially, the Fitness to Practice Committee said he lacked insight into how his postings might affect his ability to carry out his role as a social worker; subsequently the Appeals Committee said he lacked insight into how his postings may negatively affect the public’s view of the social work profession. Neither concern as to perception was properly put to Mr Ngole during the hearings.
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 dismissing Mr Ngole from his course.
On the question of legitimate aim, the court accepted that maintenance of confidence in the social work profession falls within the legitimate aim of professional regulation. However, the court held that such an aim cannot extend to preclude legitimate expression of views simply because many might disagree with those views. The use of aggressive or offensive language in condemnation of homosexuality would be capable of undermining confidence, but the court clarified during argument that the University’s position amounted to a proposition 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 professional guidelines. In the court’s view, such a blanket ban on the freedom of expression of traditional believers cannot be proportionate and is not supported by the HCPC guidance.
The court rejected a ground of appeal alleging apparent bias on the part of Professor Marsh, the chair of the Fitness to Practice Committee, based on her being in a civil partnership and LGBT activism. The court held there was no well-founded basis for actual or apparent bias in the appointment of an LGBT person in these circumstances, and to erect a requirement of declaration would itself be discriminatory.
In short, the appeal was allowed, the disciplinary proceedings were found to be flawed and unfair with the fundamental fault lying with the University, and the case was remitted for a new hearing before a differently constituted Fitness to Practice Committee.
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