The Court of Appeal has recently upheld a judicial review application brought by a student who was excluded from his trainee social worker course on the basis that his social media postings rendered him unfit to practice as a social worker. Although not an employment case, the courts findings and comments are highly likely to be referred to in future social media cases (especially those involving the balancing of ‘competing’ protected characteristics such as religion and sexual orientation).
N, a trainee social worker, was excluded from his university for making comments on Facebook (which although direct quotes from the bible and using biblical language, could be interpreted as being offensive to homosexuals). He was removed from the course on the basis that his social media posts rendered him unfit to practice as a social worker. N’s judicial review application was rejected at first instance, but he was successful in his appeal before the Court of Appeal, which held that the process the university followed in removing N from his course was unfair and flawed. In particular, the Court held that:
- Both parties had become too entrenched in equally untenable positions from the outset: (1) the university that any expression of disapproval of same-sex relations (however mildly expressed) on social media, which could be traced back to the person making it, was a breach of the professional guidelines (which was not the case); and (2) N, that the University had no business in interfering with his freedom of expression and it was his right to continue to express his religious views in the same manner (which was also not in accordance with the professional guidelines).
- The right to freedom of expression is not an unqualified right: (1) professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes; and (2) just because a belief is said to be a religious belief, does not give a person subject to professional regulation the right to express such beliefs in any way they see fit.
- The university had failed to: (1) make it clear to N that it was the manner and language in which he had expressed his views that was the real problem - his use of biblical terms such as ‘wicked’ and ‘abomination’ was liable to be understood as extreme and offensive; (2) give N any guidance as to how he might more appropriately express his religious views in a public forum, or make it clear that his theological views about homosexuality were no bar to his practising as a social worker, provided those views did not affect his work or mean he would or could discriminate; (3) explore the possibility of finding middle ground; and (4) be consistent in how it expressed the reasons it had for suspending N and failed to properly put those reasons to N.
- The university had wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that N had never discriminated on such grounds in the past and was not likely to do so in the future.
- The university’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, it imposed the extreme penalty of dismissing N from his course, which was inappropriate in all the circumstances.
The Court went on to make comments about the freedom of speech of regulated professionals and was discontent with the suggestion that their religious views must always be confined to their home. In the Court’s view, ‘…a blanket ban on the freedom of expression of those who may be called ‘traditional believers’ cannot be proportionate’.