How do you deal with conflicts of belief in schools and colleges?

To what extent can you lawfully restrict how your staff manifest their protected beliefs? We consider what schools and colleges can learn from A v Nottinghamshire County Council where a tribunal had to determine whether a teacher, who objected to the school's decision to socially transition an eight year old pupil, had been unfairly dismissed and subjected to direct discrimination because of her beliefs.

Facts

A was a primary school teacher. She is a Christian and believes that people are born either male or female and this immutable biological fact should not be conflated with gender identity. 

A was informed shortly before the end of the 2021 summer term that a child, due to be in her class from September, wished to transition from female to male. The pupil (X) was new to the school and none of her classmates knew of her past history. A wrote to the head to express her concerns about affirming X's gender and of her view that providing ‘blanket affirmative care would be very damaging, potentially leading to irreversible physical and mental harm’. 

A met with the head to discuss her concerns. The head said that A was fully entitled to her beliefs, but the school had to respect the family's choice. The head asked A to remain at home whilst it consulted HR and to give it time to find a way forward. In fact, the school also consulted with the local authority's designated officer (LADO), its legal department and Stonewall (for reasons that it didn't explain).

The school emailed A to express concerns that she may act upon her views. It advised her that she ‘must not act on them’ and said that it had moved X to a different class to limit contact and to ‘safeguard [X] from potential harm’. The letter then set out a number of requirements it asked A to agree to including:  

• using X's name and preferred pronouns when interacting with them; and
• not discussing her views with children or staff.

The letter also required A to act professionally in line with her duties as a teacher and not to breach confidentiality.

The parties met to discuss this during which the school disclosed that the child was being supported by medical professionals. That meeting was cordial and respectful.

Shortly after this A obtained support from the Christian Legal Centre and the tone of the discussions changed. A's rep advised the head that A couldn't comply with all of the requirements the school had set out because these compelled her to ‘withhold the truth from others’.

A was then formally suspended on the basis that she was refusing to follow a reasonable management instruction to use X's preferred name and pronouns. However, the school said that it remained open to finding an amicable solution. A responded by saying that she thought that the school was acting irresponsibly by helping to socially transition a child and that the school couldn't compel her to act contrary to her conscience or ban her from sharing her beliefs with others. A suggested that a good compromise was for her to avoid unnecessary contact with X, and where it was necessary to speak to X, she would avoid using any name or gender-specific pronouns. She acknowledged that information about X was confidential and said she would comply with her duty of confidentiality.

The head was reassured that a workable solution was possible. She wrote back to A and asked her to confirm that she wouldn't use any language which could disclose information about X's biological sex. The head then said she would organise a return to work meeting which took place a short time later and led to A's return to work. 

All appeared to go well. However, unbeknown to the school A started to access its confidential safeguarding system to find out information about X's private and family life. She accessed this on 17 separate occasions over a five month period and downloaded information which she then used to bring judicial review proceedings against the school to challenge its safeguarding practices. 

The school only discovered what she'd done after it received her witness statement during the proceedings. It immediately suspended her, reported the data breach to the ICO, reported her to the TRA and made a referral to the DBS.

A was dismissed for gross misconduct for accessing and sharing private information about X in breach of the school's data protection policy and its code of conduct. The school also said that her actions had destroyed the relationship of trust and confidence between the parties. A's appeal was dismissed and she brought a number of claims in the employment tribunal including unfair dismissal, detriment for having made protected disclosures and direct religion and belief discrimination.

Decision of the tribunal

The tribunal dismissed all of A's complaints. 

It accepted that A had disclosed information about the school's approach to social transitioning a pupil and that she believed it had failed to comply with its legal obligations. However it didn't accept that it was objectively reasonable for A to believe this or that her disclosures were in the public interest. That was because she had received a detailed reply to her concerns from the governors which explained why there was no statutory breach. It also said there was no evidence that the school had adopted a ‘blanket affirmation approach’ and considered the interests of each child on an individual basis. 

The tribunal said that even if it was wrong about this, the detriments A relied on, including her suspension, the disciplinary investigation and process, and referring her to various outside bodies were not made because she had made protected disclosures. They related to her misconduct.

In terms of A's dismissal, the tribunal accepted that the school had reasonable grounds for believing she was guilty of misconduct, had conducted a reasonable investigation and had followed a fair process.

Given these findings, A's claim that she had been directly discriminated against because she held protected beliefs was given short shrift. The tribunal accepted that the head had tried to find a workable solution and that the school's decision to suspend, dismiss and refer A to various regulatory bodies was driven by her behaviour - not her beliefs.

Lessons for schools and colleges

We've seen a number of cases involving teachers who have objected to affirming the wishes of pupils/students to identify as the opposite sex because of their religious or philosophical beliefs. Tribunals have been alive to the fact that teachers are in a position of trust and have professional obligations not to express their personal beliefs in a way which exploits pupils' vulnerability. Recent examples include:

• A college lecturer who refused to use the preferred pronouns of a pupil and tried to talk them out of transitioning and was fairly dismissed - Lister v New College Swindon
• A secondary school teacher refused to use the preferred pronouns of a pupil and made negative comments about same-sex marriage and was banned from teaching - Sutcliffe v Secretary of State for Education

It can be difficult to draw a clear line about what is acceptable and what is not. But this case is clear cut. Teacher A wasn't just expressing her lawful views - she was on a personal crusade against gender ideology and had misused information about a vulnerable pupil to challenge this. 

The head had thought very carefully about how the school could balance its obligations to provide X with a safe learning environment without compromising A's fundamental beliefs. She approached the issue sensitively and without passing judgment on the rights or wrongs of the issue. As a result, A was able to return to work. 

That said, I do quibble with the one of the rules the head asked A to agree to before she could return to work which required her to not discuss her views with children or staff. It's okay to prevent a teacher from discussing their personal views with children (assuming that you adopt an even-handed approach which applies to any contested issue) but not to prevent them from discussing these with colleagues - unless you impose a blanket ban which is unusual, and often counterproductive. That said, it's perfectly acceptable to say to staff - by all means discuss your views, but don't impose them on other people or expect them to agree, and if you are going to debate contested issues, do so respectfully. 

Whilst not in issue in this case, the other thing to consider is what your policy says about preferred pronouns etc. I've seen many policies which don't do enough to address and balance the needs of people who are protected under the gender-reassignment provisions of the Equality Act with the rights and needs and those protected under different characteristics. 

We may soon have some clarity on this issue. The EAT has given Mr Lister leave to appeal on two grounds. One of these is that the tribunal impermissibly narrowed the interpretation of the college's gender reassignment policy and didn't consider the inherently discriminatory nature of it. Mr Lister is arguing that the tribunal incorrectly focussed on how he had manifested his beliefs, rather than on how the college forced him to manifest its beliefs. 

We are also waiting on how the government will approach gender questioning children in the context of education. The draft guidance set out robust advice about handling different information requests such as changing the name and pronouns of children; single sex spaces including toilets, changing rooms and showers; boarding and residential accommodation; uniforms; physical education and sport; and single sex schools. The government has said it will finalise this soon.

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