Board of Management of Wilson's Hospital School v Burke

• Jurisdiction: Ireland
• Judge: Mr Justice Dignam
• Judgment Date: 17 January 2022
• Neutral Citation: [2023] IEHC 22
• Court: High Court
• Docket Number: Record No. 2022/4570P

Between

The Board of Management of Wilson's Hospital School

Plaintiff

and

Enoch Burke

Defendant

[2023] IEHC 22

Record No. 2022/4570P

THE HIGH COURT

Judgment of Mr Justice Dignam delivered on the 17 ^th day of January 2022 .

Background

1 The defendant seeks the following interlocutory reliefs:

(i) An injunction restraining the Board of Management of the Plaintiff, its servants or agents, from holding the disciplinary meeting at Mullingar Park Hotel, Co. Westmeath on Thursday 19 ^th January 2023 or any other date;

(ii) An injunction restraining the Board of Management of the Plaintiff, its servants or agents, from the conduct of any disciplinary or investigation process in respect of the Defendant;

(iii) An injunction restraining the Board of Management of the Plaintiff, its servants or agents from dismissing the Defendant.

2 In summary, the background to this application is as follows.

3 The defendant is a teacher in the plaintiff's school. He started teaching there in 2018 and was given a permanent contract of indefinite duration on the 19 ^th May 2020. He teaches German and History and the evidence before the Court shows that he had an unblemished employment history in the school and was a well-regarded teacher both in relation to his teaching and his contribution to the extra-curricular life of the school and his students.

4 On the 9 ^th May 2022, staff at the school, including the defendant, received an e-mail from the principal of the school, informing them a third year student would be making a social transition in their gender identity from the next day and stating that from then the student would become known by a different name and that “ they” should be used in place of the gender-specific pronoun that had been used up to the point. I am not referring to the pronoun that had been used. The Court, and indeed, all parties, must appreciate and be sensitive to the fact that the dispute that arose between the school and the defendant concerns a young person who is not part of this litigation. The issues in this case are issues between the plaintiff and the defendant but what is said and done during the course of this litigation has the potential to impact on this young person. The Court has an obligation to protect and have regard to that child's privacy and welfare in how it words this judgment.

5 The defendant immediately objected to the principal's instruction. He emailed the principal the very next day inquiring:

“Can you confirm to me that parents of students in the school have been informed that their children will be told that one of their classmates is to be referred to as “they” instead of [pronoun] and they must now approve this by referring to the student in this manner? Has the chaplain agreed to this?

I am shocked that students in this school are being forced to accept this position.”

6 The principal replied:

“All due care has been taken.

There is no ‘agreement’ required from Chaplain.

There is no suggestion of “force” by or for anyone involved.

If you are not willing to include [child's name] in your classroom going further, please make an appointment to see me at our mutual convenience.”

7 The defendant replied to say:

“It is wrong that this belief system would be forced upon students and I will be taking this further.

It is an abuse of children and their constitutional rights.”

8 This email exchange occurred over the course of just over an hour and a half on the morning of the 10 ^th May 2022.

9 Later that day, there was a scheduled staff meeting and the defendant raised the matter. The timing and manner in which he did so are part of the disciplinary process the subject of these proceedings and not matters to be resolved at this stage. In essence, the defendant claims that it was perfectly appropriate for him to raise this issue at the meeting and that he did so in an appropriate manner and at an appropriate time.

10 The defendant then raised the issue with the bishop of the diocese on the 13 ^th May and there was an exchange of correspondence between that date and the 21 ^st May 2022.

11 In the meantime, there had been a meeting on the 19 ^th May between the defendant, the principal and the deputy principal to discuss the issue.

12 On 27 ^th May, the principal emailed the defendant stating, inter alia:

“I am writing to you following on from the meeting last week (Wednesday 19 ^th May) regarding the request by a student and the student's parents that the student be addressed as [name] rather than [name] and that the identifying pronoun of they/their be used going forward.

I wish to clarify the approach of Wilson's Hospital to such request. The ethos of our school is inclusive and ensuring the welfare of students is paramount. As set out in the school's Admission Policy, one of the core values of the school is ‘Caring: Focusing on the experience of the young person to ensure that their experience of their time in school is accepting, happy and positive.’

The school's Admission Policy includes an admission statement, which affirms that the school shall not discriminate in its admission of a student on any of the discriminatory grounds set out in section 3 of the Equal Status Act 2000. Gender is one of the discriminatory grounds. Section 7(2) of the Act further provides that a school shall not discriminate on any of the grounds in relation to (b) the access of student to any course, facility or benefit provided by the establishment and (c) any other term or condition of participation in the establishment by a student. The right of persons to be called by a name of their choosing and in accordance with their preferred gender is a recognised right and a refusal to address persons by their preferred gender or new name has been held to constitute discrimination on the gender ground.

While I recognise that it may be challenging for you in light of your own religious beliefs, in view of the ethos of the school and the school's obligations under the Equal Status Act 2000, I expect that you will communicate with this student in accordance with the wishes of the student and the student's parents.”

13 The defendant replied on the 27 ^th May:

“On Monday 9 May you emailed all staff requesting that they address a student with a new name and refer to the student using ‘they’ rather than the [pronoun] used up that point. You also told us that the same demand would be made of all classmates of the student.

In the staff meeting the next day on Tuesday 10 May and also the meeting you requested last week on Wednesday 19 May I explained to you clearly where I stand on the matter.”

14 Matters appear to have rested there until on the 21 ^st June, a service was held in the school chapel. There does not appear to be any dispute but that this was attended by some past students, staff, board members, parents, clergy and some sixth-year students. There is a dispute about precisely what happened and as this is also the subject of the disciplinary process this dispute does not require to be resolved at this stage and it would not be appropriate to do so. What is not in dispute is that at the end of the service the defendant stood up and spoke, setting out that he would not accept transgenderism and putting it to the principal to withdraw her instruction of the 9 ^th May. The defendant sets out what he describes as “[T]he exact transcript of his contribution” in his affidavit. It is unclear to me how he maintained a “ transcript” but I presume that he had written out what he intended to say and read it at the service. In any event, there is no substantive dispute about what the defendant said. The dispute lies in a conflict about the appropriateness of him speaking and raising a school matter in a public forum (albeit with relatively small numbers) and in front of students. Nor is there a dispute that the sixth-year students walked out though the defendant makes the point that there was only a small number of students there.

15 The service was followed by a dinner in the dining hall. There is also a dispute about precisely what occurred at this event which is also the subject of the disciplinary process and does not require to be resolved in the context of this application. There is no dispute that the defendant raised with the principal the question of her request and the possibility of her withdrawing it. The main dispute again lies in a conflict about the appropriateness of the defendant raising the issue and his behaviour in doing so.

16 On the 15 ^th August 2022, immediately before the principal left her post in the school, she sent to the defendant and to the chairperson of Board of Management a copy of a comprehensive report which was prepared by her in accordance with Stage 4 of the Revised Procedures for the Suspension and Dismissal of Teachers pursuant to Section 24(3) of the Education Act 1998 as provided for in DES Circular 49/2018.

17 The Board met on the same day, the 15 ^th August, in extraordinary meeting. There is a significant issue in relation to this meeting and I return to it below.

18 The following day, the 16 ^th August, the Chair of the Board of Management wrote to the defendant stating, inter alia, that he had received a report from the principal which contained very serious allegations which, if substantiated might constitute serious misconduct, that the principal had initiated the disciplinary procedure at Stage 4, that a meeting had been arranged for the 14 ^th September 2022 and he would be given an opportunity to respond to the allegations. The letter stated that if a case of serious misconduct is upheld the normal consequence will be dismissal.

19 Then on the 18 ^th August 2022 the chairperson of the Board wrote to the defendant stating, inter alia, that he believed the Board should give consideration to placing the defendant on paid administrative leave and inviting the defendant's...