Another recusal as tribunal member steps down over ‘real possibility of bias’

3 April 2024

For the second time in a fortnight, a panel member presiding over a high-profile Christian freedoms case was forced to recuse himself due to a ‘real possibility of bias.’

Leeds Employment Tribunal heard the case of Christian social worker Mr Felix Ngole, who was supported by the Christian Legal Centre.

Mr Ngole brought a case against Stonewall backed Touchstone Support Leeds, who recruit on behalf of the NHS, after he was told that he had to ‘embrace and promote LGBTQ+ rights’ or be seen as unemployable.

Accepted on to his ‘dream job’ as a Mental Health Support worker, Mr Ngole was devastated when he was then told that, because he had once won a landmark legal case over his right to freedom of speech, he could not be employed because of his Christian beliefs.

Mr Ngole brought claims of direct discrimination, harassment, and breaches of the Equality Act 2010 against Touchstone.

Before Mr Ngole was to begin giving evidence in the case, however, concerns about a ‘perception of bias’ in regard to one of the presiding panel members was brought to his legal team’s attention.

‘Total’ support for LGBTQI+ workers

Sitting alongside Employment Judge Jonathan Brain was Mr Mohammad Taj, President of the Trade Union Congress (TUC) between 2013/14.

It was discovered that in a foreword to a booklet celebrating Mr Taj’s time as TUC president, he was described as a: “TUC President supporting equality for all and explicitly for disabled and LGBT workers.”

Under his watch he gave a speech at the TUC’s LGBT conference on 27 June 2014, where he gave ‘total’ support to the LGBT worker’s rights and said: “LGBT communities – LGBT workers – are victims as much as anyone.

Mr Taj said:

“The European Trade Unions – have a lot to do – on LGBT issues – if they are to catch up – with us – in the UK.

“That job is not yet complete – we still have a long way to go – before LGBT equality – and all equality issues – are fully mainstreamed – into the concerns of our movement.”

He added that: 

“The issues you debate here – are taken up across the TUC – and are part of our campaign priorities.”

Endorsed silencing of religious beliefs in workplace

At this conference, motions were passed under Mr Taj’s watch, including for example:

“Conference calls on all TUC affiliates to tackle the ongoing problems, including  bullying and harassment, caused by persisting homophobia, bi phobia, transphobia,  and underlying heterosexism and gender binary prejudice, at work. Conference urges all affiliates to educate and organise both straight and LGBT workers to deal with these problems.”

The conference passed 19 further motions including the silencing of religious beliefs on these issues. A report from the conference said:

“Conference celebrates the Equal Marriage legislation affording marriage rights to same sex couples. Conference considers the legislation is a progressive step. Conference recognises that Equal Marriage has generated renewed discussions about schools and education which must be monitored closely to ensure no return to Section 28 style language, confusion or condemnation. Conference is concerned that EHRC guidance suggests that teachers “can express their personal religious or philosophical beliefs about marriage of same sex couples, provided this is done in a sensitive, objective and balanced way”.

Conference believes that it is safer to advise teachers not to comment about private religious belief, where these beliefs are negative about LGB people or same sex marriage.”

‘Unring the bell of religious zealotry’

At the 146th Annual Trades Union Congress which Mr Taj oversaw as President, he passed motions on LGBTQI+ issues involving comments from delegates such as:

“The British Empire took conservative, religious zealotry to those countries and now it is time to unring the bell.”

And from another delegate who said:

“Let me be clear. There is no political, social, cultural or religious excuse for the suppression of LGBT rights anywhere in the world.  Cultural relativism should not, and must not, trump human rights.”

Mr Taj had also posted on X support for a member for an “LGBT+ stalwart” and “LGBT+ activist.

Lawyers supporting Mr Ngole made an application asking Mr Taj to recuse himself from presiding on the case as his comments and leadership on these issues could lead to a perception of bias.

Lawyers cited the precedent of a a double recusal in the case of school assistant, Kristie Higgs, when it was discovered that a transgender activist was sitting on the panel for the case.

Giving judgment on the application, Employment Judge Jonathan Brain ruled that:

“Mr Taj shall be recused”, adding that his campaigning through the unions “went beyond equality”  and “beyond equality treatment” and that he had taken views “associated with a side in the debate.”

Judge Brain said the motions Mr Taj had presided over did relate to Mr Ngole’s case when he was told he would not be able to share his Orthodox Christian beliefs with colleagues at Touchstone.

Judge Brain said Mr Taj had given his support to the 2014 LGBT conference and had “passed the motion on ‘unringing the bell on religious zealotry.’”

Judge Brain cited the double recusal in the Kristie Higgs case as a key precedent and concluded that there was no alternative but to recuse Mr Taj as there was a “real possibility of bias.”

The hearing will continue with a new panel member from the TUC, with Mr Ngole set to begin giving evidence on April 4, 2024.

The recusal follows a whole panel recusing themselves due to a ‘perception of bias’ in the case of Christian teacher, Hannah.

Andrea Williams, chief executive of the Christian Legal Centre, said:

In recent months, the Christian Legal Centre has uncovered bias in four cases. This should trouble everyone who cares about open and transparent justice.

“These members of the tribunal did not disclose their previous high-level campaigning on these issues, which would have been in clear conflict with Christian beliefs and morality.

“We are concerned how many panel members have sat on our cases in the past where we have not discovered the bias.

“As we move forward in this case we hope for justice to be done. This case is not just about Felix Ngole’s right to express his faith. it is about the Christian faith and morality in public life. These recusals demonstrate an institutional bias against Christian faith and morality. This needs to be reversed and we will do all we can to ensure that.”

Find out more about Felix Ngole
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