Sacking of teacher for accessing information on trans child not unfair dismissal, Employment Tribunal rules

The Employment Tribunal has rejected the legal claims of a Christian teacher who was dismissed after repeatedly accessing a transgender child's welfare and safeguarding data and transcribing it to her personal computer.

Employment Judge McTigue concluded that the teacher’s claim of unfair dismissal was “not well founded” and that the respondent local authority had “reasonable grounds” for believing that she was guilty of misconduct.

The tribunal further ordered that reporting restrictions on publication of anything that might identify the school, the teacher, or any other teacher in the school should remain in place “indefinitely”, to avoid the risk of jigsaw identification of the child in the case (child X).

The teacher, referred to in the judgment as “A”, refused after being asked by the school’s headteacher to refer to a year 4 pupil, child X, with a male name and pronouns at the parents' request.

As correspondence between the headteacher and A over how she should refer to child X continued, the Claimant started to use the services of the Christian Legal Centre and their representatives.

The teacher escalated her concerns and her representative wrote to the school saying "it would go against her conscience, informed by her Christian faith, to affirm a young child in their gender dysphoria".

The teacher was suspended in September 2021, but returned to teach a year later.

After returning to the school, the teacher repeatedly accessed child X's online safeguarding file on the school's CPOMS system, a computer system for staff to report incidents of welfare or safeguarding concerns.

The tribunal heard that in January 2022, the teacher started to transcribe the data held in relation to child X onto her own personal computer and then transfer that data to a memory stick. Her reason for doing so was because she was “professionally curious”.

On 8 April 2022, A’s legal representatives sent the local authority a pre-action letter in respect of their proposal to apply for Judicial Review. The proposed challenge was against:
(a) the defendants’ failure to address the safeguarding concerns raised by the claimant in relation to an 8-year-old pupil at the School, Child X; and
(b) the failure of the defendants to review in the light of evidence presented by the claimant whether their ‘trans affirming’ policies presented a safeguarding risk to children.

Despite the judicial review being filed on 14 April 2022, it was not until May 2022 that the school became aware that the Claimant had been accessing the CPOMS system and obtaining information regarding child X.

In September 2022, the teacher was informed by the Chair of the Disciplinary Panel that she had been dismissed.

In the present case, the teacher alleged that the school dismissed her, and reported her to a number of regulators, for blowing the whistle on uncovering the school’s ‘trans affirming’ policy practice which she believed endangered child X and other children.

Dismissing the claim of unfair dismissal, the Employment Tribunal concluded: “The reason for the Claimant’s dismissal was misconduct specifically her inappropriate and unauthorised use of CPOMS. The Claimant’s inappropriate and unauthorised use of CPOMS was a separate act which does not engage her Article 10 rights.

“[…] We also conclude that her dismissal does not fall within the ambit of Article 9. The reason for her dismissal was her inappropriate use of CPOMS. It was not necessary for the Claimant to repeatedly access the confidential data of a vulnerable, young child over a period of more than 5 months in order to manifest her religious or philosophical beliefs. To suggest otherwise, flies in the face of logic.”

The judgment continued: “It is plain the Respondent had reasonable grounds for believing that the Claimant was guilty of misconduct. This was an act which the Appeal Panel was entitled to conclude fell within the definition of gross misconduct as set out at paragraph 4 of the Disciplinary Procedure. It cannot be said that it was outside the range of reasonable responses for an employer to dismiss in those circumstances.”

Lastly, considering the issue of anonymity, the Employment Tribunal held that a restricted reporting order should remain in place “indefinitely”, noting: “When weighing the Claimant’s Article 10 rights against Child X’s Article 8 rights we have concluded that the latter outweighs the former. There is a significant risk of jigsaw identification of Child X in this case. Child X is a young, vulnerable individual about whom we have heard a significant amount of evidence. Child X already has had to move from one school to the school in question in this case because of concerns about their biological sex becoming public knowledge.

“The right for X to live a life in their chosen gender identity for the rest of their life prevails over the Claimant’s Article 6 and 10 rights. If we were to place a restriction on the duration of the restricted reporting order, there is a risk that the biological sex of Child X could become known in the future.”

Responding to the ruling, A said: “I am very disappointed with the judgment. […] The ruling goes to great lengths to support those who silence, discredit, and remove anybody who dares ask if we are doing harm.

“I will appeal to the Employment Appeal Tribunal. The ruling refuses to confront the extremely important issues regarding safeguarding and transgender affirmation in primary schools which is at the heart of this case.”

Lottie Winson