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When can a teachers personal views fall under misconduct?
Published: July 3 2024
A recent case Mr K Lister v New College Swindon held that a teacher who had gender critical beliefs that sex is binary, immutable and a biological fact was not unfairly dismissed or discriminated against for holding such beliefs.
The school was required to balance protecting two protected characteristics for discrimination purposes; religious belief and gender reassignment.
The claims
Mr Lister had four claims:
- Direct discrimination
- Indirect discrimination
- Unfair dismissal
- Health and safety dismissal
The facts
Student A had requested to be known by a male name and to use male pronouns going forward. Mr Lister adopted a communication style of gesturing rather than using student A’s preferred name or pronouns. Mr Lister accepted this upset student A.
Student A had questioned their eligibility to participate in an all-female maths Olympiad, given their gender transition, Mr Lister had responded ‘she could because she was a girl’ and included their previous female name on the list of entrants on the whiteboard at the front of the class.
When student A addressed this with Mr Lister, Mr Lister told student A that taking testosterone was likely to cause long term medical problems and NHS services couldn’t be guaranteed in future, and that the decision to transition was irreversible.
Student B made a complaint after Mr Lister refused their request to use student A’s preferred name and pronouns.
During the disciplinary hearing Mr Lister stated he was not prepared to use student A’s preferred name in the future.
The tribunal accepted that Mr Lister’s philosophical belief was capable of protection under the Equality Act 2010. However, they dismissed his claim of Direct Discrimination holding that the College had been justified in the extent that they sought to restrict the manifestation of Mr. Listers’ belief to protect student A’s welfare and to prevent further harm or the risk of further harm. The tribunal held that the dismissal was proportionate due to Mr Lister’s indication that his behaviour would not change in the future.
The tribunal also dismissed Mr Lister’s indirect discrimination claim. The tribunal found there was no evidence on which it could properly conclude that those with the same protected characteristic as Mr Lister were put at a disadvantage by clause 4.1 of the College’s Gender Reassignment Policy and further could not establish a link between the clause and the alleged personal disadvantage. They also did not accept that the clause proactively encouraged, persuaded, cajoled or advocated gender reassignment.
The tribunal held that the dismissal was fair due to Mr Listers’ own descriptions of his interactions with student A and were satisfied that Mr Lister was dismissed due to his conduct.
On the somewhat unusual claim that the dismissal was health and safety related and therefore unfair, Mr Lister could not provide evidence that student A was in serious and imminent danger and could not provide evidence that he was dismissed due to the steps taken to address that, therefore this was not upheld by the tribunal.
Commentary
Any employee may hold personal beliefs that oppose workplace policies and that may fall under the protection of the Equality Act 2010. Whilst they do have the right to hold and express these beliefs, their right to expression must be balanced against other protected rights. The management of such situations in the workplace requires a very careful balancing act.
Practically employers should:
- Consider whether a person’s conduct is having a detrimental impact on another’s.
- Should not treat a person differently for holding a philosophical belief in comparison to an employee who does not hold the same belief.
- Be aware of the risk of discrimination in the workplace, especially where there is the potential for rights to clash.
- Where there is an increased potential for clashes appropriate policies should be put in place and training provided for all employees. Predominantly those industries at higher risk are education and healthcare.
- Internal support groups such as employee resource groups, or where this is not possible, easily accessible information regarding external support groups.
Further information
If you require any further guidance or support on the issues covered in this article, please get in touch with our team today.
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Ruth Epps
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