Education Digest Spring term – Cases at Tribunal

Allegations based on no proper evidence deemed defamatory

In the recent High Court case Fry v Agilah-Hood:

• The Claimant, Mr Fry and the Defendant, Ms Agilah-Hood, were ex-colleagues.
• The Claimant, who is a teacher, went on to work on a fixed term basis at the primary school which the Defendant’s children attended – Northwick Manor.
• On 20 March 2021, the Defendant wrote to the Headteacher and Assistant Headteacher/Deputy Safeguarding Lead of Northwick Manor in an email titled ‘Private and Confidential: Safeguarding’, to raise her concerns that the Claimant had been placed on garden leave at his previous school because of allegations of sexual misconduct from two teachers and two administration staff and was then subsequently ‘disappeared’ so that the public school did not have to deal with any bad press. During the hearing, the Defendant accepted that she had ‘zero evidence’ to support her allegations but believed them to be facts based on what she had heard.
• The Claimant’s contract was not renewed by Northwick Manor following receipt of that email. The Claimant issued a claim for libel and sought damages and an injunction preventing the Defendant from making similar allegations plus costs.
• Libel claims can be defended if the comment is recognisable as an “honest opinion” whereas something which is said as a fact can only be defended if it is substantially true.
• In the recent Preliminary Hearing, the High Court found that the comments in the Defendant’s emails were represented as facts that the Claimant had been found guilty of sexual misconduct, was a danger to female staff and was unfit for his role. The comments were therefore defamatory. However, a comment where the Defendant drew a parallel with the Sarah Everard case of an employer who knew of its employee’s reputation but did not take action was deemed to be an opinion.  A full trial is set to go ahead later in the year.

This case highlights the importance of raising concerns carefully and to keep investigations confidential to avoid such claims. Despite the importance of communicating safeguarding concerns, that communication must be made responsibly to avoid legal ramifications.

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Take Me There

Freedom of belief  

In Lister v New College Swindon:

• Following his dismissal, Mr Lister, a maths lecturer for over 20 years who had been at the College since 2020, brought a claim against the College (Respondent) on the basis he had been unfairly dismissed and discriminated against as a result of his gender-critical beliefs, in that this amounted to a philosophical belief capable of protection.
• In September 2021, Student A – a 17-year-old biological female – sent an email to Mr Lister, the Claimant, requesting they become known by a different, male name. The Claimant did not respond to the email or change the student’s name on the Respondent’s communication system.  Instead, the Claimant logged a concern on the Respondent’s safeguarding portal, questioning whether the student had received counselling to understand ‘her’ decision.
• An employee met with Student A and then reassured the Claimant that she had no concerns about Student A’s decision and asked him to read the School’s Gender Reassignment Policy.
• The Respondent’s Gender Reassignment policy provided that students aged 17 and above could request a name change and that staff should use the name, pronoun and title requested.
• The Claimant asserted that he was unable to comply with this request due to his gender critical belief (i.e. a view that ‘sex is binary, immutable and a biological fact and should not have been conflated with gender identity’) and thereafter accepted that he found it difficult to refer to Student A by their preferred gender or name, despite accepting that Student A found this upsetting. The Claimant also told Student A that ‘she’ could attend an all-female Maths Olympiad.  Student A’s attendance declined, telling Student B that it was due to the Claimant’s attitude towards transition.
• In January 2022, Student B asked the Claimant to use Student A’s preferred name and pronouns stating that they would complain if he did not. The Claimant explained his reasons.  Student B complained.
• The Respondent investigated. The Claimant accepted telling Student B that she had a duty to talk her friend out of transition, that transition was a disaster situation and other comments.  The Respondent also found that the Claimant had made negative comments about sexual orientation on social media.  One post included the Claimant’s photograph so it was possible to identify him as being the author of the posts.  At the tribunal he accepted that his posts could be viewed as transphobic.  The investigator recommended disciplinary action.
• In February 2022, the Claimant voluntarily attended a CPD session on transgender and gender identity issues at the Respondent’s request. During the session the Claimant made comments which others found upsetting.
• The Respondent referred the matter to the LADO who condoned a further investigation. Following the investigation a disciplinary process was initiated whereby the Claimant was invited to face numerous allegations including that he had subjected a transgender student to discrimination and harassment. He was subsequently dismissed for gross misconduct and barred by the DBS from participating in regulated activities with children.

In assessing the facts of the case the Employment Tribunal concluded that the dismissal did not amount to an act of discrimination; the Claimant had been dismissed for misconduct. The dismissal was justified in that following an indication by the Claimant that his behaviour would not have changed going forward, the only option left available to the employer to avoid the risk of further incidents of discrimination and/or harassment from occurring, was in fact to dismiss him.

Pupil loses claim that school’s prayer ban was discriminatory

A pupil at Michaela Community School, a non-faith free school in Wembley, has lost her claim that a policy banning prayer rituals was discriminatory and breached her right to freedom of religion.

The secondary school was set up over a decade ago by Katharine Birbalsingh, a former Chair of the Government’s Social Mobility Commission.

In March 2023 approximately 30 pupils gathered in the yard to pray, using their blazers to kneel on.  That same month, the school introduced a rule that pupils were not allowed to gather in the school yard in groups of more than four due to concerns of “segregation between religious groups and intimidation within the group of Muslim pupils”.  Roughly half of the school’s 700 pupils are Muslim.  The school received death threats following the ban and argued that lifting it would expose its staff to unacceptable risk.

The judge found that the pupil attended the school knowing that it was secular and that she knew that prayer was not permitted at the school before she became a pupil there.

For more information about any of the cases mentioned in this article, please get in touch with Rachel, or another of our expert Education Solicitors.