Lessons from the Court of Appeal
The recent decision in R (on the application of Ngole) v The University of Sheffield¹ makes interesting reading for any university undertaking fitness to practise proceedings or indeed any disciplinary proceedings that involve rights under the European Convention on Human Rights.
The facts of the case are ones that, if our experience is anything to go on, are now exceedingly commonplace, in that they relate to the expression of views some would regard as objectionable or abhorrent on social media.
A student on a MA in Social Work expressed views on Facebook which disapproved of same-sex marriage and described homosexuality as “a sin” and “wicked”. These views were as a result of his religious beliefs. When challenged about these postings the student defended his right to express his opinions and this raised concerns that he lacked “insight”. He was therefore excluded from his course on the grounds that his fitness to practise was impaired, and this finding was upheld by the University’s Appeal Committee. The student brought a claim for judicial review which was dismissed at first instance. His appeal to the Court of Appeal was successful on the following grounds:
• The University had erred from the outset in proceeding on the basis that any expression, however mild, of views disapproving of same-sex relationships was a breach of professional guidelines. The relevant HCPC guidelines permitted personal views and opinions to be expressed provided they weren’t offensive; the example given was views that were racist or sexually explicit.
• The student’s position had then become entrenched because he felt he was being prohibited from expressing his religious beliefs and pursued the erroneous argument that the University had no business in interfering with his religious beliefs. It clearly did, but only to the extent needed to meet the professional expectations referred to above.
• The University had not at any stage tried to explain that it was the manner and language in which the views were expressed that was the problem, nor had it tried to give guidance on how the student might more appropriately express his views in the future.
• Nor was it reasonable to conclude that the mere expression of these views was itself discriminatory or evidence of an intention to discriminate in professional practice, especially set against the evidence that the student had not discriminated in the past and had no intention of doing so in the future.
• The University had failed clearly to articulate what “insight” the student was said to lack. It began by asserting that the insight in question was how his postings might affect his ability to carry out the role of a social worker, but became a lack of insight into how his posts might be perceived by service users.
• The sanction of exclusion from the programme was disproportionate. The University had not explored lesser sanctions such as a warning or further training.
From these specific findings, the decision appears to point to a number of more general propositions.
Firstly, universities need to make sure that their expectations of students are clearly set out and have due regard to the need to ensure any interference with Convention rights, such as freedom of expression, freedom of religious belief and/or the right to a private and family life, goes no further than is needed to achieve a legitimate aim, such as protecting the rights and freedoms of others. In this case, the attempt to ban the expression of “traditional” religious views was not justified by the need to maintain public confidence in social work.
Secondly, students should, wherever possible, be given a chance to learn and develop a professional approach/outlook rather than being immediately excluded. This may create tensions with the concern often expressed by staff teaching on professional courses that they need to exercise their roles as “gatekeepers to the professions” diligently and vigilantly to protect the public, and that removing students whose fitness to practise is impaired is the best way of doing that. But proportionality may require that students are given a chance to remediate the impairment before being asked to leave.
Thirdly, the case against the student needs to be clearly put. We have seen many instances where allegations relating to fitness to practise are vaguely drafted and ill-defined. In this case the Court considered that there had been a failure to articulate (a) precisely what “insight” the student was considered to lack and (b) that it was the manner in which he expressed his views rather than the fact of expressing them that was the problem.
A point made in passing in the judgment needs to be considered further. The Court acknowledged that permitting the student to continue might well have been an unpopular decision, although whether amongst staff or other students or both it is not clear. However, it made the point that universities must be prepared to take unpopular decisions, where to do so is the just and proportionate response on the basis of the evidence before them. The significance of this statement could be profound for a sector where student cases are now frequently accompanied by much social media commentary and public outcry, and institutions can feel under real pressure to “send a message” or act on principle. The Court of Appeal has clearly signposted that where such pressure results in decisions that are disproportionate or unjustifiable by reference to the evidence, they will be overturned. Universities may want to consider including an express statement in their disciplinary and fitness to practise procedures to the effect that all cases will be decided on the basis of what is just and proportionate given the available evidence. This may help to prevent (a) misguided attempts to compare outcomes between ostensibly similar cases but where the evidence and mitigation was different; and (b) suggestions that the decision should be based on the strength of campus or public feeling about a particular matter, rather than the strength of the evidence.
¹  EWCA Civ 1127