Legal: The need for sensitivity in public statements
Queensland Teachers' Journal, Vol 124 No 7, 27 September 2019, page no. 29
Issues relating to speech by employees both in the discharge of their duties and in their non-work lives are currently featuring very much in public debate, in court cases and in proposed legislation.
The purpose of this article is to draw attention to a recent decision of the Court of Appeal in the United Kingdom, which identifies some important principles worthy of consideration. The case is entitled “Ngole v The University of Sheffield” and the decision was handed down on 3 July by the English Court of Appeal.
Mr Ngole was a student in a two-year Master of Arts and Social Work course at the University of Sheffield. Significantly, as Mr Ngole was on an accredited course which, on successful completion, could lead to registration and professional practice as a social worker, the relevant code of conduct applied to both the course providers and to students.
Mr Ngole was a devout Christian “for whom the Bible is the authoritative word of God”. Upon enrolment in the course, he signed documents relevant to standards of conduct and ethics. Later, however, he posted a series of comments on his Facebook account expressing views which included biblical quotations strongly disapproving of homosexuality. These posts were brought anonymously to the attention of the university. An investigation was initiated, and disciplinary proceedings followed.
Ultimately Mr Ngole was successful to the extent that errors of both substance and procedure had been made during the proceedings. Accordingly, an appeal was allowed and the outcome set aside. However, the Court concluded: “This Court cannot finally determine whether the appellant would have resisted the possibility of tempering the expression that is used or would have refused to accept guidance which would resolve the problem. This requires new findings of fact. This case should, therefore, be remitted for a new hearing before a differently constituted Committee.”
The Court of Appeal noted that one of the legitimate aims of the professional regulations was “a maintenance of confidence in the relevant profession”, and that that “must be supported in law”. The court observed that “every set of professional regulations is likely to encompass the same, if in no other sense than to incorporate a duty not to bring the relevant profession into disrepute”, and that the maintenance of confidence will carry very different requirements in different professions and in different factual contexts. The obligation to maintain confidence in a profession “cannot extend to prohibiting any statement that could be thought controversial or even to have political and moral overtones”, adding that no social worker, for example, “could be sanctioned for arguing in public that social work was underfunded”, provided that such views were not in offensive language.
The critical consideration in this case was that the legitimate aim of such regulation: “must extend so far as to seek to ensure that reasonable service users, of all kinds, perceive they will be treated with dignity and without discrimination. Social work service users cannot usually choose their social worker. The use of aggressive or offensive language in condemnation of homosexuality, or homosexual acts, would certainly be capable of undermining confidence and bringing the profession of social work into disrepute. As the guidance makes clear, the appellant had an obligation not to allow his views about a person’s lifestyle to prejudice his interactions with service users by creating the impression that he would discriminate against them.”
Later the court noted: “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? For present purposes, it is not easy to see a rational distinction between these groups. All are usually engaged with service users who often have no opportunity to select the individual professional concerned. Very many of these professions deal on a day-to-day basis with personal problems of a particular nature, where the social, family and sexual relationships of the client or service user are relevant, sometimes central.”
The court added an important caveat: “In our view, such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate. In any event, the HCPC guidance does not go so far. The specific guidance prohibits “comments ... [which] were offensive, for example if they were racist or sexually explicit”. No doubt if the appellant’s comments were abusive, used inflammatory language of his own, or were condemnatory of any individual, they would fall to be regarded in the same way as would racist views, or inappropriate sexually explicit language.”
In recent years, the Employment Appeal Tribunal has made two decisions taking a similar approach. Caution and restraint are clearly appropriate.