The case, an appeal from a professional misconduct panel, demonstrates that a teacher's protected ECHR rights must be balanced with professional responsibilities.
The case of Sutcliffe v Secretary of State for Education derives not from an employment tribunal or claims or unlawful discrimination, but rather the outcome of a professional conduct panel ("the conduct panel") of the Teaching Regulation Authority. After a six-day hearing the conduct panel recommended to the Secretary of State for Education ("SoS") that a prohibition order ("the ban") be put in place. That recommendation was followed by the SoS, preventing Mr Sutcliffe ("the appellant") from teaching indefinitely.
Background
The appellant was a teacher and is an evangelical Christian. He holds very strong views on gender identity, homosexuality, the role of women and Islam. While teaching he deliberately misgendered a transgender male student in his class on multiple occasions. The pupil had always presented as male and very few people at the school were aware that he was transgender. When he was subsequently interviewed on the matter the appellant repeated the misgendering and effectively "outed" the student as transgender on national television. This and similar conduct, including telling a class that homosexuality is a sin that might be cured through God with no regard for the gay and lesbian children in his care, led to complaints and subsequent dismissal from one school in February 2018 and further complaints and his resignation from a different school in November 2019.
When the conduct panel was convened to consider his conduct at both schools it held that the appellant was guilty of unacceptable professional misconduct and conduct that might bring the profession into disrepute. In coming to this conclusion, the panel considered conduct standards set out in regulation 4 of the Teacher's Standards - specifically the need to uphold public trust in the profession by treating pupils with dignity, having regard for the need to safeguard pupil wellbeing and showing tolerance of and respect for the rights of others. This led to the recommendation to the SoS and subsequent implementation of the ban.
High Court proceedings
The appellant appealed against the ban. The High Court acknowledged that the appellant's religious convictions were "plainly protected" by Article 9 of the European Convention on Human Rights ("ECHR") describing it as "well-trodden ground". Similarly, Article 10 protects the appellant's right to express his deep religious convictions. It also confirmed that there was no suggestion that, in their analysis of the appellant's behaviour, the conduct panel considered him to have unlawfully discriminated or harassed the transgender pupil contrary to the Equality Act 2010. However, that, according the High Court, "misses the point".
So, what is the point? The right to manifest beliefs under the ECHR are qualified and according to the judgment "it is fundamental that teachers not only educate but that they should at all times treat the children in their care with dignity and respect and that they should safeguard their wellbeing". The High Court had no doubt that these restrictions on a teacher's right to manifest their religion or belief were proportionate.
Comment
The High Court was clear that, just because misgendering a transgender pupil might not be unlawful that does not mean it is appropriate conduct for a teacher and, when done deliberately and repeatedly in class and on television that it can amount to professional misconduct. Although this case happened in an educational establishment and the context was regulatory it has relevance to all employers. The court findings to some extent mirror cases brought under the Equality Act 2010 in employment tribunals. Where it is acknowledged that similar beliefs are protected, but where disciplinary action or dismissal occurs because a worker has manifested those beliefs in an unacceptable way, the employer's action may not amount to discrimination.
This however may not be the end of the matter - the appellant has indicated he intends to take his case to the Court of Appeal.
