Transgender Whistleblowing

MILS members will be aware of the recent Supreme Court decision on the definition of transgender people under the Equality Act.  Employment law frequently has to wrestle with difficult and competing concepts, particularly in the realms of religion and belief.

In the first instance decision of A v Nottinghamshire County Council a teacher who claimed that she was dismissed for whistle blowing raising her concerns relating to the treatment of a transgender child was found not to have been unfairly automatically dismissed and was dismissed instead for her misconduct.

Background

In this case, the Employment Tribunal rejected a teacher’s claim that she was dismissed for whistle blowing because of a disagreement with the school over how a student’s wish to change gender was handled by the school.

In a decision published on 23rd May 2025, Employment Judge Peter McTigue held that the Claimant, employed since January 2017, was not unfairly dismissed in September 2022, after raising safeguarding concerns, but rather that her dismissal was because of misconduct. 

The teacher initially objected to the school’s approach of providing ‘affirmative care’ to a child, then aged eight or nine, who wished to transition from female to male. She raised concerns about the potential impact on the child’s wellbeing and stated that using male pronouns conflicted with her Christian beliefs.  The disagreement eventually led to the teacher’s suspension and subsequent reinstatement.

The teacher was however later suspended a second time and ultimately dismissed for gross misconduct.  Prior to the dismissal the teacher had repeatedly accessed the school’s Child Protection Online Monitoring System (CPOMS) without permission to view the child’s records.  When disciplined for this action the teacher ‘provided no guarantee’ to the disciplinary panel that she would cease using the CPOMS in an unauthorised manner should she be allowed to return to work.

The teacher then brought a claim in the Employment Tribunal claiming that she was treated unfairly because she had reported concerns (which she believed were protected disclosures). Her claims included being automatically unfairly dismissed for whistleblowing, being unfairly dismissed in general, being wrongfully dismissed, facing discrimination because of her religious or philosophical beliefs, and experiencing harassment related to those beliefs.

Decision

The Employment Tribunal held that the teacher’s dismissal was not due to any whistleblowing, but rather because she repeatedly accessed the CPOMS in an unauthorised manner which ultimately resulted in her dismissal for gross misconduct. 

The Employment Tribunal found that the school acted fairly and lawfully, emphasising that the teacher was never penalised for whistleblowing. It concluded that there was no discrimination against her and that her suspension did not amount to a detriment. Throughout the suspension period, the teacher continued to receive full pay and was treated respectfully, supporting the finding that the suspension was handled appropriately.

Comment

The Judgment makes sensible reading for employers, whilst also reminding employers of the minefield in employment law in these areas.  The Courts and Tribunals are having to balance religious or philosophical beliefs against each other.  In whistle blowing, successful claims have to show that the protected disclosure itself (and not misconduct related to that disclosure) was the reason for the dismissal in order to succeed.  The Judge in this case could clearly distinguish misconduct leading to dismissal from the dispute over the employee raising concerns.