Belief discrimination: did a school unlawfully dismiss an 'activist' supply teacher for expressing his protected beliefs during a training session?

That was the issue the tribunal had to determine in the case of Dybowski v Bishop of Llandaff Church in Wales High School and Staffroom Education Ltd.

Facts

Mr Dybowski is a teaching assistant and is a Catholic. He was engaged by a supply agency (the second respondent) to work in schools. His first placement involved supporting a student who was transitioning but it was cut short because he had ‘repeatedly’ misgendered the student (he said accidentally).

He then started working at the Llandaff High School. Around five months into his placement he attended a training event designed to help staff to navigate discussing controversial topics with their students. During the training Mr Dybowski said that same sex marriage was not a true marriage, he equated abortion with murder and criticised Sharia Law. Three members of staff complained to the head about what he had said. 

The head teacher met Mr Dybowski the next day. He intended to have a brief conversation about the training and anticipated that Mr Dybowski would reassure him that he wouldn't express his views in the same way in front of staff or students. 

That conversation didn't go to plan. Mr Dybowski told the head that he was active on social media, his account was public and he regularly expressed the sorts of views he had voiced during the training. He described himself as a “debater” and “campaigner”. The head referred him to guidance on social media issued by the regulator in Wales (EWC) which said that teaching staff shouldn't do anything that would bring the school into disrepute or ‘compromise public confidence in the education workforce’. It also provided guidance on social media that staff needed to consider.

The conversation went downhill from there. Mr Dybowski argued that the school could not prevent him from taking to social media to express his lawful views. He asked the head questions on a range of issues, including the definition of sex in the Equality Act and whether he could refer to a pupil's biological sex even if they had transitioned, as well as questions about immigration. The head said that some of his views were “deeply offensive”, could be perceived as “hate views” and should not be “verbalised in a professional environment”. He said that they contradicted the school's ethos of ‘love, acceptance, responsibility and forgiveness’. 

He asked Mr Dybowski to leave and said that he would contact the agency and refer him to the EWC.  

Mr Dybowski parting shot was to accuse the head of being the “wokest headmaster” he'd ever worked with. He contacted the national press about what had happened and appeared on GB News. As a result, the school and head received abusive messages from the public, and some from parents who were concerned that the school was restricting freedom of speech.

The agency refused to offer Mr Dybowski any further work and he brought proceedings against it, and the school, arguing that his dismissal and referral to the EWC amounted to direct discrimination and harassment because he expressed beliefs that were protected under the Equality Act 2010.

Decision of the tribunal

Mr Dybowski argued that the following beliefs were protected:

1. A belief in Biblical marriage and a lack of belief in same-sex marriage, recognising it as legal but contrary to Biblical teaching.
2. The belief that human life must be respected and protected from conception, viewing abortion as gravely contrary to moral law. 
3. Being critical of aspects of Sharia law, such as the severe punishment for homosexual acts.
4. The belief that sex is fixed, a lack of belief that someone can change their biological sex and/or gender, and a lack of belief in gender fluidity, based on the Bible Genesis 1.27.

The tribunal accepted that most of these beliefs were protected. The exception was Mr Dybowski's criticisms of Sharia law because they were opinions and didn't amount to beliefs.   

The tribunal, however, rejected the substance of his discrimination claims against both respondents. 

The claim against the school

The tribunal concluded that Mr Dybowski had demonstrated a complete lack of insight or awareness about how his views had affected other people during the training. And, he said he would repeat them even though he knew they upset and offended other people. The head was also rightly concerned about how Mr Dybowski's views might impact on students (particularly those who were refugees or transitioning) - not least because the tribunal found as a matter of fact that he had ‘quietly took opportunities to discuss his views with pupils and staff on a number of occasions’.

The school's decision to dismiss him and refer him to the EWC was related to how he had expressed his beliefs - not because he held views it disagreed with. It was proportionate for the school to seek reassurances that he would not express his views both in school and on social media to safeguard its values and responsibilities to the children at the school, and when it failed to get these, to refer him to the EWC. 

The claim against the supply agency

The agency had not discriminated against Mr Dybowski for holding protected beliefs or for expressing them. It had removed him because he was rude to the head (the school was an important client) and his subsequent media campaign had a ‘catastrophic effect’ on its business. 

The balance between completely beliefs

The tribunal recognised the challenges faced by schools when balancing the competing rights of different groups. It said that 'the claimant has a right to hold his beliefs and to manifest them but he is under the same prohibitions as the rest of society to not discriminate or harass others … The first respondent was entitled to want to exercise a degree of control over how beliefs were manifested within the school environment in accordance with the school’s values given the potential power imbalance between pupils and teachers and in the context of potentially vulnerable pupils".

Lessons for other schools and colleges

Mr Dybowski's behaviour clearly crossed a line here. He could have reflected on how his views had come across to others (and possibly whether he needed to have mentioned some of them at all in the context of the training); instead, he went on the attack. He attempted to turn the meeting into a debate about various controversial topics and, when he didn't get the answers, he was looking for, he resorted to name calling and abuse. 

He then tapped into the so-called ‘culture war’ narrative, and supported by some media outlets, presented a one-sided story about what had happened to him which heaped pressure on the school and the agency.

1. Social media

In other cases, the line will be much harder to spot and you will need to exercise care and judgment before deciding whether to take action against a member of staff who has expressed their lawful beliefs - particularly on social media. The Court of Appeal has laid down firm guidance which makes it very clear that employees can hold and express views on social media even if they offend other people. You can read our analysis of that case here. 

I wonder whether the EWC's guidelines on social media use will be updated to reflect this as the guidance provided is, arguably, too wide in my view.

2. Understanding the law

You also need to make sure that your senior leaders properly understand the law. The head teacher was aware of the Equality Act and on the convention rights that protect freedom of expression (which he referred to during the discussion). But he made several surprising comments which suggest that he didn't really understand how to navigate conflicts of belief. For example:

“I think some of the views that you've expressed to me … are deeply offensive, and I'm offended by some of the things you say” and “you don't have a right to express a view that causes offense to others”. 

The legal situation is more nuanced than this. Employees don't have to keep their protected religious or philosophical beliefs to themselves; they have rights under Article 9 to manifest those beliefs and under Article 10 to express and hold opinions that others my find distasteful or offensive. But both are qualified rights. You can take action against staff who inappropriately manifest their beliefs, such as proselytising or promoting their views in a way that is intrusive or offensive, or for harassing others - but not for simply expressing their beliefs in an appropriate way.  

“So the very fact that they [the pupils] looked to you as a person, that they respect, that you privately, by the very nature of not accepting their desire [to change gender] … I think is discriminatory.” 

That's not an accurate statement of the law. A teacher is entitled to reject gender identity. What they are not entitled to do is to harass a pupil (or anyone else at school) who believes in it. The tribunal made it very clear that it wouldn't have been proportionate for the school to report Mr Dybowskito the EWC on the basis that his belief made it unsafe for him to work with young children. It was also not reasonable for the head to conclude that Mr Dybowski thought less of a transgender pupil drawn purely from the fact he didn't believe that people can change gender.   

3. Make sure your training is legally compliant

Training is important - but it's as important to instruct someone who understands the law and whose training materials reflect the law as it stands, rather than how they want it to be.  

Only use external trainers and speakers who explicitly recognise a diversity of views on the more challenging areas and have the ability to facilitate conversations about them. They should commit to engaging all participants, and their views, in training sessions and to deal openly with difficult conversations. 

We can help you get this right. Please contact Jenny Arrowsmith or Gordon Rodham for more information. 

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