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College teacher fairly dismissed over his gender critical beliefs

In the case of Mr K Lister v New College Swindon the tribunal held that a teacher who had gender critical beliefs was not unfairly dismissed and his claim for discrimination failed.

The Claimant, Mr Lister was a teacher at New College Swindon who had worked at the College since August 2020 and taught A-Level Maths and Computer science. Mr Lister believes that sex is binary, immutable and a biological fact and therefore should not be confused with gender identity. This belief was accepted by the college as a protected belief under the Equality Act 2010.

On 2 September 2021, Student A emailed Mr Lister to inform him that they wanted to be known by a male name and would be using use male pronouns going forwards. Mr Lister did not respond to this email. Mr Lister then reported a concern via the College's safeguarding portal. He queried whether Student A's parents had agreed and consented to Student A's wishes, and asked whether the student had received the 'requisite counselling to allow her to make a decision of this magnitude.' A member of the safeguarding team investigated Mr Lister's report and met with Student A to discuss the issues following which she reported that she had no concerns with Student A's decisions. However, there were concerns around the language that Mr Lister had used and he was advised to access and read the College's Gender Reassignment Policy.

Notwithstanding this guidance, Mr Lister found it difficult to use the preferred name and pronouns that Student A wanted. Therefore, he adopted a general neutral communication by gesturing rather than using the student's name.

An incident arose when Student A asked in class about their eligibility to participate in an all-female Maths Olympiad. Mr Lister responded saying 'she could because she was a girl'. Mr Lister proceeded to write the student's previous female name on the list of entrants on the whiteboard in front of the class. Student A stayed behind after class to speak to Mr Lister and during this discussion Mr Listertold Student A that their decision to transition was 'irreversible' and that 'taking testosterone is likely to cause long-term medical problems and she would be reliant on the NHS, and the services could not be guaranteed for the future'. In light of this Student A attendance began to decrease.

Student B, a friend of Student A, made a complaint about Mr Lister and his inability to use Student A's preferred name and pronouns. This complaint was investigated and upheld. This launched a disciplinary investigation into Mr Lister's conduct, during which he was suspended.

disciplinary investigation concluded that amongst other things, Mr Lister had failed to follow the college's Gender Reassignment Policy which directed staff to adhere to students' requests. Mr Lister was faced with a disciplinary hearing and case to answer.Throughout the process Mr Lister remained adamant that he would not use Student A's preferred name and that there was no legal obligation on him to do so. Mr Lister also filed a grievance and whistleblowing complaint with the Respondent, both of which were rejected and dismissed.

Lister was ultimately dismissed from his role as Lecturer at the College. He therefore proceeded to bring a claim for unfair dismissal and discrimination on the grounds of religion or belief against the College. In particular, he alleged that his dismissal had been due to him attempting to protect a student from what he considered to have been the serious and imminent risk presented by the use of cross-sex hormones.

The Tribunal focused on Mr Lister's behaviour towards Student A. They found that Mr Lister was dismissed due to his conduct and due to him expressing his beliefs in an 'objectionable' manner. The Tribunal considered that Student A's own rights and freedoms had been violated.

The College's Gender Reassignment Policy sought to protect those in Student A's position from suffering harassment and discrimination under the Equality Act, but Mr Lister had not adhered to the same. Mr Lister had manifested his beliefs in an 'objectionable' manner which ought to have been prohibited to ensure the protection of others.

The Tribunal concluded that New College Swindon's decision to dismiss Mr Lister had not fallen outside a range of decisions open to a reasonable employer in the circumstances, particularly since Mr Lister indicated that he was not prepared to modify his conduct going forwards.

The complaints of unfair dismissal and discrimination on the grounds of religion or belief were dismissed, and as too was an associated compliant of indirect discrimination.

What does this tell us?

It is important to remember that teachers will hold their own beliefs (that may be protected) whether they be in line with school or college policies or not. They also have rights to hold those beliefs and to an extent, to be able to express them. However, it is essential that these beliefs are not manifested onto children or other staff members as doing so can be both intrusive and offensive to the recipient of these beliefs. In this case, it was significant that Mr Lister was in a position of power and had essentially used this power to impose on and harass Student A with his own beliefs.

Although Mr Lister may have believed that he was not causing any harm by what he considered to be a general, neutral conversation, he should have taken advice on how to approach this situation given his beliefs conflicted with the student's specific request. Balancing two opposing beliefs, which can sometimes also involve two competing protected characteristics for discrimination purposes, can be difficult for employers to manage, but the starting point should be to consider whether one person's conduct is having a detrimental impact on another's. When in doubt as to how far they can go, or whether they should be express their beliefs, teachers and other workers who regularly come into contact with children should reach out to HR or management for guidance and support. Doing so can potentially avoid situations which lead to messy investigations, complex disciplinaries and grievances as well as tribunal litigation.

In this case, Mr Lister did apologise profusely during the investigation meeting but ultimately the damage to the student had already been done. Furthermore, his failure to agree to use the student's preferred pronouns going forwards during the disciplinary hearing will no doubt have been fundamental to the College's decision that it had to terminate Mr Lister's contract of employment. Had Mr Lister agreed to change his behaviours and attitudes towards the student at that stage of the proceedings, it may have been open to the College to issue a lesser sanction than dismissal.

The impact of demonstrating behaviours akin to Mr Lister's should not be underestimated for those engaged in regulated activity. Not only was Mr Lister fairly dismissed for engaging in "emotionally manipulative behaviour" but he was also referred by the College to LADO and DBS, who made a decision to bar Mr Lister from future engagement with children, thus impacting his career in teaching.

Finally, employers should remember to seek legal advice on tricky situations which involve opposing beliefs, especially when the manifestation of those beliefs has the potential to cause harm. Government guidance is also a potential source of support, the government having issued new non statutory guidance on gender questioning children. Whilst the guidance is in draft form, and is currently the subject of consultation, it does offer some useful tips for schools and colleges dealing with this challenging topic.

For more information contact Laura McHugh in our Education department via email or phone on 0161 918 0008. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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