Mr Ngole was a mature student enrolled on a two-year MA in social work. This was an accredited course which, on successful completion, would lead to registration with the Health and Care Professions Council (HCPC), a regulatory body for various professions in the social work sector. On admission, Mr Ngole was required to sign a “Student Entry Agreement” (Agreement) confirming that he accepted the HCPC code of conduct. Crucially, the Agreement contained the following term:
“My conduct will reflect the standards expected of me, both as a student at the University of Sheffield and a prospective member of the social work profession and I will be mindful of the fact that my conduct outside the programme of study may compromise my entitlement to complete the programme or to register with the HCPC.”
The Facebook Posts
In September 2015, Mr Ngole contributed to a discussion on Facebook. The topic was the imprisonment of Kim Davis, following her refusal to issue marriage licences to same-sex couples because of her Christian beliefs. Mr Ngole quoted the Bible and made around twenty posts, including the following:
“… [S]ame sex marriage is a sin whether we accept it or not”
“…Homosexuality is a sin, no matter how you want to dress it up”
“…[Homosexuality] is a wicked act and God hates the act”
Disciplinary Action and the University’s decision
After a fellow student anonymously reported these posts, the University investigated the matter and initiated their disciplinary process. Following an initial interview, the matter was referred to the Fitness to Practise (FTP) Committee. A hearing with the FTP Committee took place on 26 January 2016 and the decision taken was to exclude Mr Ngole from the course (but not to exclude the possibility of applying for a different course).
The FTP Committee found that Mr Ngole was in breach of two professional requirements:
- Keeping high standards of professional conduct
- Making sure that his behaviour does not damage public confidence in the profession
On 23 February 2017 Mr Ngole appealed this decision to the University Senate, asserting that he had been discriminated against on the basis of his religion. The Senate Appeal Committee upheld the FTP Committee’s decision. One of their primary considerations was Mr Ngole’s failure to acknowledge or respect the relevance of the HCPC Code of Conduct.
Consequently, Mr Ngole complained to the Office of the Independent Adjudicator, which determined that the University’s decision was reasonable. Mr Ngole then issued judicial review proceedings against the University. After an unsuccessful application to the High Court, he appealed to the Court of Appeal.
The Court of Appeal in its judgment dated 3 July 2019 found that the University had erred in its decision and ordered the matter to be remitted to a fresh FTP Committee. In reaching this decision, the Court of Appeal made the following points:
- Throughout the process, the University held the position that any expression of disapproval of same-sex relations on social media was a breach of the professional guidelines. This stance was not in accordance with the HCPC code.
- The HCPC professional code did not prohibit the use of social media to share personal views but simply said that the University might have to take action “if the comments posted were offensive, for example if they were racist or sexually explicit”.
- The right to freedom of expression is not an unqualified right: professional bodies and organisations are entitled to place reasonable and proportionate restrictions.
- Both sides adopted extreme and polarised positions from the outset, which meant that the disciplinary proceedings got off on the wrong track.
- The University did not make it clear that it was the manner and language in which he had expressed his views that was the real problem, and in particular that his use of Biblical terms such as “wicked” and “abomination” was liable to be understood by many users of social services as extreme and offensive.
- The University quickly formed the view that Mr Ngole had become “extremely entrenched” and that he lacked “insight” into the effect that the Facebook posts would have. This led the University rapidly to conclude that a mere warning was insufficient.
- The University however failed to explore the possibility of finding a middle ground and they unfairly put the onus on Mr Ngole to demonstrate that he did have “insight” and could mend his ways.
- The University wrongly confused the expression of religious views with the notion of discrimination.
- The University gave different and confusing reasons for the suspension.
- The University’s approach to sanction was disproportionate; they should have explored imposing a lesser penalty.
This Court of Appeal’s judgment highlights the complexities of fitness to practise cases and the relevant rules (in this case the HCPC code) before making any determination. In this case, the premise on which the FTP Committee based its decision impacted the decision made by the Appeal Committee and meant the whole process was flawed. Sanctions should also be carefully considered and proportionate; in this case, the University imposed the most grave penalty without due consideration of whether a lesser sanction would have been appropriate. In addition, in cases that involve conflicting human rights, universities should tread carefully.
In this case, the Court of Appeal rejected the implication of the University’s submission that certain religious views can never be expressed in public by those subject to professional rules – such a “blanket ban” on freedom of expression would not be proportionate.