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THE KIDS ARE BACK AT SCHOOL ………………insert your own joyous words of happiness here!

I dearly love my children, but 2 weeks is pretty intense.  I find the juggle the hardest.  I am super vocal about the huge pressure of trying to be super mum, super children’s entertainer, super- boss, super-lawyer, super-caterer (for the endless snacks), super travel-agent (for our recent trip), super-litigator, super-cleaner …the list goes on, and actually failing in every single aspect – why?  Because I am a perfectionist and the bar I set for myself is an impossible task if I had even one to focus on, never mind 55,000!!

So, having them settled back at school brings an element of calm and routine back into the world that I absolutely adore.  I can focus on Precept and the wonderful work we do in working hours and then my kids get the whole of me in the evenings and weekends – so I no longer have to spread myself so thin I am translucent!

We have had a truly wonderful Easter though – you will have seen some of the fun and frolics we got up to on our Lincolnshire break with my parents, and we were so lucky with the weather.  Yes, that is right Rob was paddling in the sea in Lincolnshire on 01 April and this was no April fools! We even had a BBQ the first night – and that was in March!  Generally, our trip was filled with the best of things of an English seaside holiday – and great fun was had all around!  The most wonderful guys here kept the helm of the Precept ship and it was Rob and my first holiday where we did NO work…nothing!!  So, a HUGE thanks goes out to Philip, Alex, Catherine and Mark 😊

But that’s enough about silly old me. Let me bring you an interesting recent case from the Employment Tribunal, all about balancing conflicting protected characteristics in the workplace. This is the case of Lister v Swindon New College and it’s a really interesting one, dealing with issues around gender identity.

Mr Lister was employed as a teacher at the New College in Swindon. He holds gender critical beliefs – that sex is binary and immutable (a man is born a man and stays a man, a woman is born a woman and stays a woman, regardless of any surgery or social changes they might make).

A trans pupil at the college emailed Mr Lister to ask that he call him by a male name and use male pronouns. Mr Lister’s response? To raise a safeguarding concern, which was ultimately not upheld.

The college then received a complaint from another pupil that Mr Lister was not using the preferred name and pronouns as requested. The complaint also made allegations that Mr Lister had inappropriately repeated negative comments about his own personal views on gender reassignment (that it was experimental, irreversible and caused long-term medical problems which meant the student would be reliant on the NHS) and that he would gesticulate simply to avoid using the name of the pupil (which Mr Lister referred to as a “gender-neutral” communication style).

The college investigated the complaint and upheld it. A disciplinary process was subsequently launched into allegations which included that Mr Lister had failed to comply with the college’s Gender Reassignment Policy, which said staff should respect students’ requests in relation to the use of pronouns and names.

Mr Lister apologised during the investigation meeting but also said he would not use the student’s preferred name in the future, there being no legal obligation for him to do so. He was ultimately dismissed for engaging in “emotionally manipulative behaviour” towards the student, placing them at risk of emotional harm, and because he had failed to comply with the relevant policies.

Mr Lister brought claims in the Employment Tribunal for unfair dismissal, direct discrimination and indirect discrimination (relating to protected philosophical beliefs).

Gender critical beliefs are protected as a philosophical belief under the EqA 2010 (you are of course already fully aware of that, having been to our training sessions) and the Tribunal and the college in Mr Lister’s case acknowledged that.

However, the Tribunal found that:

  • The college’s policies did prevent Mr Lister from holding gender critical beliefs and they weren’t applied to him in a way that was different to those who didn’t share his beliefs – was able to reasonably express his beliefs and he’d even done so during training sessions.
  • There was no evidence to suggest he had been subjected to less favourable treatment because he held gender critical beliefs.
  • He had manifested his belief in a “manifestly objectionable” manner – he had discriminated against the trans student and harassed them and made clear he would not have changed his behaviour moving forward.
  • The college’s decision to dismiss was proportionate and reasonable in the circumstances – there wasn’t a less drastic step they could have taken to avoid further discrimination or harassment.

In short, Mr Lister was not successful in his claims.

So what do we learn from this case?

The big takeaway from this case is it gives us an insight into how Tribunals will expect employers to balance conflicting protected characteristics. This is a really hard situation – where there are 2 protected characteristics in play and you cannot keep everyone happy.

It reinforces that holding certain beliefs that others may not agree with can be protected under the EqA 2010 and it is even fine to express those beliefs, as long as you do so in a reasonable way (employment lawyer’s favourite word again!)

But here, Mr Lister went too far – he didn’t ask for guidance or support from the college, instead he used his position of power over the students to share his concerns about gender identity, referring to “experimental” medical treatments and this resulted in him discriminating against the student, which meant it was reasonable for the college to intervene in the way it did.

More specifically, though, if you are in the education sector, then there is guidance out there to support you in dealing with these type of situations. The government recently published draft guidance for schools and colleges on gender questioning children and the Teaching Regulatory Authority also has guidance in place.

So, there we have it…..further useful guidance from the Tribunal on the tricky web that is discrimination.  If this is an area that is still new to you or you want to learn more (don’t we all!), please do contact us and we are always happy to deliver our training sessions either to your HR team or our employee focused training to managers and staff generally.  We can’t simply assume the ostrich position (random fact that I will no doubt regret sharing ….I am absolutely terrified of ostriches, emus, cassowaries, rheas (I bet you never knew there was so many varieties!)) on these tough issues – preparation is key.  Give us a shout if we can help – because we love to help and we LOVE training!