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Jude Shepherd acted for the Respondent in Lister v New College Swindon: Case Summary

Jude Shepherd acted for the Respondent in Lister v New College Swindon: Case Summary

42BR's Jude Shepherd acted for the Respondent in the case of Lister v New College Swindon Case No: 1404223/2022. The Employment Tribunal’s decision in this case was given on 27 March 2024. The matter was heard by Employment Judge Livesey, Ms. England and Ms. Mayo. 

This topical case concerned a former teacher’s claim that he had been unfairly dismissed and discriminated against for holding gender critical beliefs. The Claimant, Mr. Lister, believed that sex is “binary, immutable and a biological fact and should not have been conflated with gender identity” [§5.8]. The Respondent, New College Swindon, is a further education college. The Claimant was dismissed from New College Swindon for failing to follow the College’s Gender Reassignment Policy (‘the policy’) and his interactions with a transgender pupil - Student A. 

The Claimant taught Student A in the 2020/21 academic year and raised a safeguarding concern in respect of Student A’s preferred pronouns. This was investigated and no safeguarding issues were found. The Claimant was referred to the Policy. Despite this guidance, the Claimant found it difficult to use Student A’s preferred name and gestured towards the student instead. He confirmed that Student A could enter an all-female competition because ‘she was a girl’ and discussed his view of the consequences of gender treatment with Student A. Student A’s attendance deteriorated. 

Student B complained about the Claimant’s treatment of Student A. The complaint was investigated, and other students corroborated the ill-treatment. Student B’s complaint was upheld along with a recommendation that HR investigate whether Student A had been discriminated against and a referral to the Local Authority Designated Officer (‘LADO’). 

Student B, a member of staff and parents also raised concerns about the Claimant’s social media posts. Further issues arose out of the Claimant’s conduct at a gender issues CPD session. Employee C raised concerns about the Claimant, who in turn, raised a second safeguarding concern over how transgender students were being supported. The Head of Safeguarding considered this a difference of views rather than a safeguarding issue. He then made a referral to LADO who recommended an internal investigation. This led to the Claimant’s suspension and a disciplinary hearing. 

The Claimant complained to several external agencies about the Respondent's allegedly affirmative approach to transgender students. He also raised a grievance and a whistleblowing concern. Both were rejected. 

The disciplinary process found that the allegations of the Claimant’s interactions with Student A amounted to unjustified discrimination and/or harassment. The concerns regarding the CPD sessions and social media posts were dismissed. The Claimant was dismissed, and the Respondent liaised with the LADO regarding a DBS referral. The Claimant unsuccessfully appealed the dismissal. The Claimant was subsequently barred from participating in regulated activities with children. 

Preliminary matters:

The case gave rise to several preliminary issues, including whether the press could observe the hearing remotely and whether Rule 50 anonymity orders should be made in respect of the individuals referred to in the evidence.  Members of the press were given remote access to the hearing. Rule 50 orders were made in relation to students, a particular staff member and a relative of the claimant. During the Tribunal’s deliberations another staff member applied for an anonymity order. That application was refused. 

The substantive complaints:

The claimant complained of:

  • Direct discrimination (s.13 Equality Act (‘EqA’) 2010);
  • Indirect discrimination (s. 19 EqA 2010);
  • Unfair dismissal (s.98 Employment Rights Act (‘ERA’) 1996);
  • Health and safety dismissal (s.100 (1)(e) ERA 1996). 

The Employment Tribunal dismissed the Claimant’s complaints of discrimination and unfair dismissal on the grounds of religion and belief. The court’s primary reasons for doing so were:

Direct discrimination 

a. The tribunal found that failure to uphold the Claimant’s safeguarding concerns was not because of his beliefs. Further, the Claimant had all the necessary advice and guidance that he needed in the Gender Reassignment Policy.

b. Although there was a sufficient nexus between the Claimant’s beliefs and his comments at the CPD session, those comments were a potentially objectionable manifestation of his beliefs that warranted investigation at a disciplinary process. The allegations were dismissed. 

c. The Claimant was not directly discriminated against because of his tweets as the Respondent dismissed that aspect of the complaint.

d. Regarding the allegations of discrimination arising from the LADO referral, the Claimant’s beliefs were proximate to his interactions with student A, but the LADO referral did not seek to restrict his beliefs. Even if that were a consequence that would be justified to protect Student A from harm.

e. The Claimant used Employee C as an actual comparator. However, their circumstances were different as no student had complained about Employee C. 

f. The Claimant’s view that he ought not to be dismissed for breaching the Gender Reassignment Policy because it was non-contractual had to be considered in the broader context. 

g. The Claimant was dismissed for two reasons: his failure to adhere to the policies and his interactions with Student A. The former would expose any member of staff to sanction irrespective of their beliefs. The Respondent was justified in limiting the way the Claimant manifested his beliefs in his interactions with Student A. 

h. Given the Claimant’s indication that the behaviour would not change in the future, dismissal was justified. 

Indirect discrimination

i. The policy was the relevant provision, criterion, or practice (‘PCP’). There was no evidence that the policy placed those who shared C’s protected characteristics at a disadvantage. The policy did not require an employee to accept the biological sex of an individual changed if they transitioned. 

j. The Claimant could not establish that the failure to advance his safeguarding concerns was because of the PCP; the policy celebrated diversity, but it did not proactively encourage gender reassignment. 

k. The Tribunal concluded that the defence of justification was not engaged. However, they noted, that the policy was issued in pursuit of the legitimate aims to protect individuals in the category of gender reassignment, and it did not exceed that purpose. 

Unfair dismissal 

l. The Tribunal considered the three-stage test in BHS v Burchell [1980] ICR 303. The Tribunal was satisfied that the Claimant was dismissed for his conduct. It was not disputed that his conduct was a manifestation of his belief.  The issue was whether it was reasonable for the Respondent to draw the conclusions it did based on the evidence. Given the Claimant’s extensive concessions about his interactions with Student A, the conclusions were reasonable.

m. The Tribunal accepted that the investigation involved a few students sympathetic to Student A. However, this had less bearing on the outcome because the Claimant’s conduct was not in dispute. 

n. The sanction of dismissal was appropriate given the Claimant’s lack of contrition, the harm Student A suffered, the concerns raised by others and the Claimant’s indication he would not modify his behaviour. Despite the Claimant’s previous ‘clean record’ this behaviour amounted to gross misconduct. 

o. The dismissal was not procedurally unfair; therefore, Polkey findings were not required. Had they been required, the tribunal stated Polkey findings would have been likely. 

Health and Safety dismissal

p. The Claimant put his case that Student A taking cross-sex hormones placed them in serious and imminent risk of danger. The Claimant had no evidence that Student A was taking/considering cross-sex hormones or that this danger was serious and imminent. 

q. The steps the Claimant took may have been appropriate if there had been a danger of the requisite standard, there was no evidence the Claimant was dismissed because of the steps he said he had taken. 

Time 

r. The complaints of indirect discrimination and, all but one of, the complaints of direct discrimination were out of time. Despite this, the tribunal would have viewed the direct discrimination claims to be part of a course of conduct and/or used its discretion to determine the matters. 

Lister v New College Swindon Case No: 1404223/2022 judgment.

Case summary written by 42BR pupil, Vistra Greenaway-Harvey.


16th Apr 2024

Jude Shepherd

Call 1996

Jude Shepherd

Vistra Greenaway-Harvey

Call 2021

Vistra Greenaway-Harvey

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