A maths teacher fired by a college for refusing to use the name and pronouns of a trans student has been granted an appeal against a tribunal decision that ruled he was not unfairly dismissed.
Last year, the employment tribunal rejected an unfair dismissal claim from Kevin Lister, a teacher at New College Swindon from August 2020 until September 2022, who was found to have discriminated against a trans student and refused to comply with the college’s policy on gender.
The case will now be heard at an employment appeal tribunal after a judge ruled there were “arguable points as to the boundary between belief and manifestation” of belief under the 2010 Equality Act, and “unqualified rights to hold a belief” under the European Convention on Human Rights.
According to one legal expert the appeal outcome could have ramifications for all employers in education.
At a preliminary hearing last week Judge Beard labelled the appeal as “complex and raising point(s) of law of public importance”.
New College Swindon said it was “disappointed” with the appeal decision but remained “confident” its actions were “fair, justified, and did not amount to discrimination”.
Specialist employment lawyer Joanne Moseley from Irwin Mitchell told FE Week she had witnessed a growing number of incidents relating to conflicts of belief and freedom of expression.
She said: “I’ve seen many policies, including in the education sector, which don’t do enough to address and balance the needs of trans people protected under the gender-reassignment provisions of the Equality Act with the needs and rights of those protected under different protected characteristics, such as religion or belief and sex.”
The appeal comes after a significant Supreme Court ruling in April which ruled the legal definition of a woman is based on biological sex.
Case begins
Lister was hired to teach maths at New College Swindon in August 2020, the same year student A, as named in the tribunal documents, started their A-levels at the college.
The following year student A asked Lister to refer to them with a male name and pronouns.
Lister was subject to a disciplinary investigation after the college received a complaint from another student that he refused to use student A’s preferred pronouns. The college also found Lister gestured towards student A instead of using their name, and on one occasion, wrote the student’s previous female name on the classroom whiteboard.
Lister also filed a safeguarding concern over student A being in “serious and imminent” danger from taking cross-sex hormones, though he later admitted having no evidence to substantiate his concern.
Lister was fired in August 2022 for gross misconduct for refusing to follow the college’s gender reassignment policy, which told staff to use students’ preferred names and pronouns. He was also barred by the Disclosure and Barring Service (DBS).
Former principal Carole Kitching acknowledged at the tribunal that Lister also had protected beliefs, but he was sacked because of the way he manifested his gender critical views rather than those beliefs.
Lister brought claims of unfair dismissal, discrimination on the grounds of religion or belief and indirect discrimination in late 2022. All claims were dismissed in a judgment handed down in March 2024.
Appeal fight
Lister launched a crowdfunder in January 2024 called “Fight transgender madness in the education system” to fund cases against New College Swindon, the DBS and the Department for Education. The latter is for a judicial review “against the DfE’s actions to deliberately allow transgender indoctrination into our schools”.
At the time of going to press he had raised £34,288 towards his £50,000 target, receiving over 1,100 donations.
The employment appeal tribunal judge accepted two grounds of Lister’s appeal and said there were “arguable points” to assert the boundary between belief and manifestation in the Equality Act.
Lister argued the first tribunal did not consider the “inherently discriminatory” nature of the college’s gender reassignment policy and that the college attempted to interfere with his beliefs by making him adhere to the policy.
The hearing will discuss whether Lister’s contention that he “finds it difficult to use what he perceives to be the “incorrect” pronoun” was justified.
Moseley said that employers often manage issues “incorrectly” when staff members hold protected beliefs that don’t align with organisational values.
“For example, applying a hierarchy of protected characteristics and prioritising certain ones over others, possibly because of poor DEI training or allegiance to particular workplace schemes,” she said.
“The college in this case was seeking to balance these issues in the measures it took. Whilst each case is determined on its own facts, it is likely that the EAT case will give guidance that all employers can learn from.”
A New College Swindon spokesperson said: “Our priority is, and always will be, the safety and dignity of all of our students and staff.
“We will continue to cooperate fully with the legal process and look forward to resolving the matter at the appeal hearing in due course.”
Lister told FE Week: “This is a critically important case to both education and democracy. If I am successful, teachers in schools and colleges will be free from the demands to promulgate ideologies against their wishes.
“This freedom is one of the bedrocks of Western democracies, yet it has never been under more threat.”
Plea for guidance
The appeal case comes as colleges await trans guidance from the government.
The DfE published draft guidance for colleges in December 2023 and has yet to publish the findings from its 2024 public consultation.
New College Swindon urged the DfE to provide “clear, statutory guidance”.
“The absence of definitive national policy continues to place education providers in a difficult position,” a college spokesperson said.
