The case of Lister v New College Swindon highlights the important difference between holding beliefs and expressing those beliefs. In many cases the belief and the way in which an employee expresses that belief may be wholly appropriate. Action taken against an employee in those circumstances would run the risk of a successful employment tribunal claim being made, either for unfair dismissal and/or discrimination. Lister, however, was not one of those cases.
Background
The claimant held a philosophical belief that sex is binary and immutable and should not be confused with gender identity. One of his students emailed him and asked to be known by a male name and pronouns. However, in addition to raising a safeguarding concern that was subsequently found to have no merit, telling the student that taking testosterone would cause long term health problems, the claimant consistently refused to acquiesce to the student's request. Instead, he used what he referred to as gender neutral communication style involving gesticulating at the student. Subsequently, a complaint was made by another student about the claimant's continuing failure to use her friend's preferred pronoun and name. That complaint was investigated and upheld. A disciplinary process was then instigated which alleged, amongst other things, that the claimant had failed to follow the college's Gender Reassignment Policy that directed staff to adhere to a student's request regarding pronouns and name.
The claimant made a number of concessions during an investigatory meeting and apologised unreservedly. The investigation concluded there was a case to answer, and a disciplinary hearing was arranged. Despite the earlier concessions, at the disciplinary the claimant asserted he would not use the students preferred name and there was no legal obligation on him to do so. He was dismissed for failure to comply with relevant college policies, and "emotionally manipulative behaviour" that put a student at risk of emotional harm. His appeal failed.
Tribunal judgment
The claimant brought claims of unfair dismissal and discrimination on the grounds of religion and belief. It was conceded that the claimant's beliefs were protected. However, the claimant had been dismissed due to his conduct and the objectionable manner in which he expressed his beliefs. He had failed to adhere to the respondent's Gender Reassignment Policy that sought to protect transgender students from harassment and discrimination. His refusal to use the student's preferred pronouns going forward was also significant. In the circumstances the decision to dismiss was one that was open to a reasonable employer. His claims for unfair dismissal and discrimination failed.
What can employers learn from this case?
The conflict between gender critical beliefs and transgender rights is one that has been seen repeatedly within the employment tribunal in recent years. Individuals have the right to hold beliefs and, within reason, to manifest those beliefs. In the education sector, schools and colleges also have a duty to protect pupils' rights and freedoms. This case highlights that where beliefs are manifested in a way that conflicts with that duty, or is objectionable, an employee may be dismissed fairly and in a non-discriminatory manner, subject to following an appropriate procedure.
The respondent will have been assisted in defending this case because it had appropriate policies in place that the claimant failed to consider or comply with. Policies should be reviewed and updated, taking into account any guidance that is available from government or bodies such as the Equality and Human Rights Commission. Employees should also be made aware of the policies and have easy access to them. In cases where they are not sure what action is appropriate, they should be encouraged to seek advice from HR or other suitable support. Provision of training to staff on these issues would also reduce the likelihood of mismanagement of this type of situation.
What is the current guidance on this issue?
The guidance in relation to the correct approach in schools, is not entirely clear. There is now apparently conflicting guidance on the use of preferred pronouns in schools, which differs between England and Scotland. The Westminster Government issued draft non-statutory guidance for schools and colleges in England on Gender Questioning Children for consultation in December 2023 (the consultation closed in March 2024). The draft guidance states that changes of pronouns used within schools should be "rare" and "even in these rare occasions, children and teachers should not be made to use 'preferred pronouns'. Instead, alternatives should be found." Responses to the consultation range from those who say the guidance is wrong and not in compliance with the Equality Act, to those in broad agreement. By contrast, guidance for Scottish schools issued in 2021 provides that teachers should use the name/pronoun chosen by the young person. The lack of conformity of approach by governments within the UK serves to highlight how difficult it is to negotiate this particularly sensitive issue.
