In the resent case of Ngole v Touchstone Leeds, the Employment Tribunal considered whether a charity had discriminated against an applicant based on his religion and belief after a pre-employment Google search revealed the applicant had made negative comments about the LGBT+ community and same-sex marriage on Facebook.
Background
Mr Ngole, a Christian, applied for the role of Discharge Mental Health Support Worker with Touchstone Leeds, a charity providing mental health services. Around 12% of the charity’s work includes providing services to the LGBT+ community.
Mr Ngole was offered the role conditional on the charity receiving satisfactory references. The charity became concerned after one referee seemed reluctant to provide any information about Mr Ngole, and so it decided to search his name on Google. The search revealed newspaper articles reporting that Mr Ngole had been dismissed from a social work course after posting derogatory comments about gay and bisexual individuals on Facebook.
Touchstone decided to revoke the job offer on the basis that the charity was concerned for its user’s welfare. Mr Ngole challenged the decision and was offered a second interview to give him the opportunity to provide assurances that the role would not be compromised by his views. The second interview did not result in the job offer being reinstated.
Mr Ngole subsequently brought an Employment Tribunal claim, arguing that he had been discriminated against on the grounds of religion or belief.
Findings
Mr Ngole’s direct discrimination claim against Touchstone succeeded in part, but only in relation to the decision to withdraw the conditional job offer. His claims for harassment and indirect discrimination failed.
The refusal to reinstate the job offer after the second interview was found to be a proportionate means of achieving a legitimate aim and so found not to be discriminatory. The charity made its decision because Mr Ngole had not been able to provide the necessary assurances that he was suitable for the role, not because of his religious beliefs.
Impact
This case highlights the importance of employers being compliant with data protection laws when conducting pre-employment searches, especially on the processing of ‘special category data’.
As with the processing of all personal data, employers are required to ensure the processing of this special category data is lawful, fair transparent, and not excessive.
Employers must identify an additional legal basis under Article 9 of UK GDPR when processing special category data. For example, by obtaining consent, there being a legal basis to process the data, or this data already being public.
Here, Mr Ngole’s religious views were already in the public domain. However, the Information Commissioner’s Office states in its draft guidance on data protection and recruitment, that employers should not make assumptions about a person’s suitability for a particular role based on special category data, even if this date is publicly available.
It is good practice for employers to:
- Carry out any pre-employment checks at as late a stage in the recruitment process as is practicable and only use them as a means of obtaining specific information that would have a bearing on the employment decision.
- Explain to applicants the nature of any pre-employment searches which may be carried out and how they will be done.
- Ensure that all reasonable steps are taken to ensure the information sources are reliable.
- Avoid using publicly available special category data to make assumptions about a candidate’s suitability for a particular role.
- Allow applicants to provide an explanation for any issues that may arise prior to rescinding any offers that have been made.
It is essential that organisations consider whether online searches are fair and proportionate and that they are transparent with candidates about the checks they will carry out.
