Thread by @tribunaltweets

We are reporting from the Upper Tribunal where Kevin Lister (KL) is appealing his prohibition from working with children in any regulated activity.

KL was referred to the Disclosure and Barring Service (DBS) by his employer, a further and higher education establishment, in January 2023.

The DBS referral followed his dismissal by the employer for misconduct.  KL was unsuccessful in his claim for unfair dismissal and is separately appealing the employment tribunal decision on indirect discrimination.

Our coverage of Kevin Lister's related case, the employment tribunal with New College Swindon is here. open.substack.com/pub/tribunaltw…

There are 2 Rule 14 anonymity orders. Specified people must remain anonymous.

We report what we hear in good faith but do not provide a verbatim record of proceedings.

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Abbreviations:
J – Upper Tribunal Judge Smith
KL - Kevin Lister
AL - Dr Anna Loutfi, KL's barrister
DBS - Data Barring Service
GW - Galina Ward, DBS's barrister
NCS - New College Swindon
DSL - designated safeguarding lead
Certain witnesses and pupils will not be identified by name. Initials as below will be used.
A - principal female student who wished to present as a male.
B - student instigator of complaint.
C - member of staff providing transgender training course.

This a permission hearing, the first stage of an appeal. There is no evidence.

Permission can be granted if arguably the DBS made an error of law or an error of fact. There needs to be an arguable ground of appeal with a realistic chance of success.

Discussion on the bundles.

J: have KL's well drafted grounds of appeal - 11 pages, supplemented by AL's skeleton and 36 paragraphs response from GW.

J: deal with facts then law?
AL: preference to go with the law - provides a framework of the appellant's (App) position.
J: Legal points first.

AL will cover each ground, then GW will respond.

AL: flags the fact that there are 2 decisions - first to put KL onto the Children's Barred List (CBL).
Ground one - error of law -- the decision is not proportionate. UT can address proportionality.

AL - decision was not proportionate and was unreasonable.

First decision Dec 2023 - we have considered all info we hold and are satisfied of the following ...KL failed to follow policies and procedures, didn't use preferred name and pointed at student (missed)
DBS is satisfied.

AL what is meant - failure to follow one particular policy the gender reassignment policy which asked teachers to use preferred name for minors, children.
Failure to follow one direction within one policy. Decision refers to policies and procedures plural.

AL - a failure - the direction on policy, and a refusal to use name (pointing) and list of comments, in conversation with student B, and included in complaint raised by B.

AL - Subject of the refusal refers to A.

J: Private conversation with B - yr client agrees those comments were made.

AL - My client wants to be clear that Student B initiated that conversation.
J - was Student A there?
AL - No,

AL _ DBS doc states point of departure was failure and a refusal. We've considered all the info we hold. Whilst we may have long discussions relying on evidence abt what it was that motivated the DBS to seek further info against our client - that led to Dec 2024 final decision. That is for an appeal.

AL_ 3 applications of 4 months with impact on my client. Needed to be treated with urgency, as your noted, J. It affects professional and personal relationships.

AL - We don't know why we had a second decision, bolstered by archeological trawling of my clients social media post. It is my client's refusal to use the chosen name of Student A, whom KL knew to be a birth female.

AL - Dignity & respect (DAR) has been equated to upsetting a student, and ultimately causing that student emotional harm. Emotional harm is a decision for the DBs, who decide the degree of harm.

If we accept failing to use pronouns is upsetting. We say the evidence and decision can't show there is objective evidence of harm. How has DBS found emotional harm caused?

AL - If the DBS position is that failure to show DAR, failure to use pronoun and name, then we need to explore why? The cause of the emotional harm was not shown.

J: insufficient reasons to connect the harm with the upset?

AL_ yes

AL - missed. No way of understanding what KL's intentions were. Kl raised safeguarding concerns with various management, principals, the LADO, Muti agency safeguarding hub (MASH) DFE and the police.

J - all by KL?

AL _ DBS's position is safeguarding and medical transition is irrelevant.
If not a case abt safeguarding, the my clients safeguarding concerns , that using language that would transition a young person through speech acts would initiate transition pathway.

AL a teacher of maths - it is arguably a clinical decision.

J - safeguarding concerns were raised to the College in compliance with the safeguarding policy?

AL - Yes. KL was not shown the gender reassignment policy (GAP) . The single principle in college's safeguarding policy which states every member of staff must safeguard children in their care.

AL - by being asked to facilitate a child's transition through speech acts without parents' knowledge very concerning. Para 20 in skeleton - the nub of my submission.

AL reading - the App refusal to engage in speech lays at the heart of this appeal, the proportionality point. Whatever we say abt KL's comments, recorded by Student B, twitter posts back to 2019 (surrogacy, gay

AL - marriage, a teacher and student relationship in the US) are creatively worked into the case, to his refusal to engage in speech - that has never ever been addressed by the DBS.

AL - App rejects that you can change sex, after Forstater. My client's gender critical belief is that you can't change sex and that it harms you physically and in other ways, an aggravated harm where encouraged in someone who is barely an adult and in a confusing stage of life, adolescent.

AL - App's refusal lies at the heart of the matter. KL's safeguarding concerns aside (a framing that cannot be removed, and the objective q of harm), we also have q of KL's rights , vulnerable man who has been targetted. Authority - case of DMR.

AL - Art 10 doesn't allow teachers to make inappropriate comments.
GW - interrupts (missed).
AL -- Art 10 argument doesn't work if teacher initiated. Not only was a position initiated by the students, & the policy of the college supported the students to make that demand of KL.

KL - Is it equivalent that a teacher makes comments later found to be inappropriate, with a teacher socially transitioning a minor?

AL (not KL) Kl has Art 9 rights - unqualified protected right to hold a belief. In the caseworker's summary, the Equality Act (EqA) was tickbox exercise.
He hasn't walked into a classroom and imposed anything on students.

AL The criticism is KL imposed himself on students. Can you reasonably be accused of imposing yrself because you will not {missed - take their political position).
[missed]

AL - DBS decision has a glib reference to EqA, and cases cited Sutcliffe of irresponsible teachers and DMR - getting a rise out of students. Seriousness of my client's position. Decision letter - discrimination and transphobic issues.

KL raised safeguarding concern b4 he was not the safeguarding problem. Teachers who will not sign up to specific political decisions are barred from teaching. If this is the case, political dissent and safeguarding risk become the same.

Goes to the heart of the Art 9 rights to freedom of belief that underpin democracy. It hasn't been addressed. Compelled KL to act in a way that was contrary to his beliefs.

He believed they were doing harm. KL was asked to adapt his entire world view to that of the student.
In case of DMR , not relied on by DBS, the judge said

significant that teacher was unsuccessful that "the teacher shd have not allowed himself to be led by children. he was the adult in the room... a strong lack of understanding of his astral responsibility, not teaching plan."

AL continues: It is Art 9 and safeguarding arguments that dovetail, and the reasoning of DBS of proceeding from first to second decision, and tweeting in a private capacity. The substantive decision is the first decision.

not the social media trawling of the second. Who is the cause of harm to the student. DBS value judgment concludes social harm - Student A upset, not treated with DAR, Kl didn't use language therefore emotional harm.

Al - nothing to say my client caused emotional harm, finding of fact.
J - no further questions.
10 minute break.

AL - Wednesbury unreasonable.

GW - on this ground, if you consider taking into account DBS decision if the tribunal may find this disproportionate, you must give permission.

GW - first, in relation to 2 decns, you were told DBS gave no reason for revisiting its decision. In letter, it may have attributed views wrongly to Student A or B [facts wrong], employment tribunal reached its decision. a lengthy decision, great deal of factual information.

GW - artificial to proceed to an appeal without taking ET in account. DBS decision maker take ET into account.
It explains that DBS was notified of social media activity by KL, so was required to consider it, but didn't find it relevant.

GW - decision of 5 Sept 2024 - findings satisfied you failed to follow college policies & when speaking to student B failed to treat with DAR by sharing negative views on social transition.
J clarifying

GW - allegations brought to attention by the college
J - and allegation [3] brought to attention by an outsider
GW - yes

GW - in decision making doc - considered item by item.

GW - 1st - finding of fact on multiple twitter posts.
Maths lesson at page number
(we don't have this document so hard to report)
Evidence on the student A & B concerns set out
Reference to ET judgment

GW - balance of probabilities - starts with Student A & B - that those things happened, and the maths lesson incidence, and twitter posts were made - constitutes risk of harm to the relevant children.

J clarifies

GW - twitter posts risk of harm not course of conduct.

GW finding reference for J.
J - got it (names reference) - you failed to treat students A&B with DAR, caused harm also re twitter posts - constutes risk of harm in relation to children.

GW - yes.
Consideration of ET decn and further info provided by college principal of KL's microsoft teams letter, an email reference in favour of KL, 3rd party reports of social media activity.

GW - Not common - but not unusual to seek stay - so UT has all the info available when considering, including the ET finding of facts.
DBS review conducted with an open mind - not seeking to bolster an earlier decision, [2nd] decision made on full understanding of the facts.

GW - in relation to cases. DBS doesn't rely on DR case.
Sutcliffe case is referred to for page 68 - for the institution and not individual teachers to decide how these unquestionably difficult decisions - gender reassignments. Missed. Staff must follow ethos of the school.

GW - College evidence at ET - safeguarding officer speaks to Student A and is satisfied there are no safeguarding concerns and reports back to KL, refers him to a GAP. He doesn't refer to senior management.

GW Evidence of safeguarding lead college staff - had he sought assistance , it shd have been possible to broker a way through.

GW - It is a case where teacher wouldn't abide by policy and put his own views the way he wanted to express them ahead of the considered decision reached by (his employers).

GW - failure to follow policy , led to DAR and emotional harm.
AL - clarify not no evidence of emotional harm (EH) by no EH caused by KL's conduct.

GW - Student's A's mother concerned by impact Kl's behaviour had on A. Risk of causing EH by failure to offer DAR which is expected to be complied with by everyone at the institution, and evidence EH was caused..

GW - proportionality is shorthand for consideration of individual's rights and risk of harm (RH). Expressly acknowledges the EqA and protected belief does not entitle him to act in contravention of policies.

GW - careful consideration of concerns based on evidence. Having decided it was appropriate, Art 8 - impact, Art 9 & 10 beliefs- does not mean he can conduct himself in a way that causes risks to young people. Express consideration of Art 9. Not right that they ignored it.

GW - reached conclusion that it is proportionate. It is not reasonable arguable for this trib to find not reasonable.

J - did the DBS have the students' complaint, or work off the investigation?

GW - Formal complaint made. An interview held, and a list arose called something like "horrible things Kevin said".

J - clarifies - was that i/v ever transcribed?

GW - sanitised.

J - it was student B regarding A, after A left class?

J then Student A's mum?

GW - yes. Disciplinary was based on Student B's complaint. ST provides firm chronology.

GW - ET says what happened in classroom isn't under dispute. Other parts of disiplinary process don't form part of DBS process. can't tell you if Student A's mother was b4 or after dismissal.
KL - 10 march.
J - where is mother's email in bundle?
[answered]

Kl - the college says mother's consent was in that email which didn't come to me until Nov

AL - EAT is next year on Article 9 and GRP.

GW - it was said Sutcliffe and DMR were abt misspeaking. Not true of Sutcliffe as he was an evangelical Christian - very firmly held views.

GW - doesn't take a view on the correctness of the GRP - students in an institution are entitled to expect staff will follow policies designed by

J so presumably if you don't belief in those policies you don't work in that institution?

GW - you take it up through the appropriate channels (missed)

AL - re ET judgment that contains extensive factual information - note that ET was 27 March 2024 - but none of the factors are referenced in the December decision. They can't explain the first decision.

discussion on paragraph references.
AL - Reference to ET - not a case that you won't use the correct pronouns but that you won't follow policies, but pronouns got him onto the list. Protection of students from alternative view. AL talks abt free Palestine in schools.

AL - the initial refusal was the reason for the initial DBS decisions - serious issues on proportionality. DBS shd have considered safeguarding - where is some evidence that DBs reviewed the appropriateness of the policy, that KL held to be a safeguarding risk?

AL - 9missed) needs to be dealt with properly. The policy has been withdrawn> If so fundamental why was GRP removed at same time as tribunal proceedings?

AL - college investigator said unable to modify his behaviour accordingly, even when made clear that Student a was upset as a result.

AL - We say upset equation with EH must be unpacked - cannot conflate those in a balancing. test is rational connection between (missed) and the measure.
missed. Students are upset all the time. The objective is safeguarding.

AL - we are dealing with children.
AL - a case by case basis needed. Harm could be caused by transition. Gung-ho affirmative approach is destructive. There may be very important issues.

AL - Student A's attendance continued to decline after KL dismissed. Asking Kl to adopt a blanket approach based on his everyday working with the student.

AL - I don't agree the DBS came to this with an open mind. It took the college's position,. Failed to take safeguarding. The main substantive reason he's on the CRB is because he refused to socially transition the child, he had not modified his behaviour,

AL - that will be tested as a manifestation of his behaviour (based on belief it would cause harm) at the ET. Missed.
J - we've covered everything on ground 1.

AL - fleshed out proportionality argument in detail.
J - my main focus. A lot of facts accepted.

J - we could go through KL's grounds - important they are heard.
GW - do any grounds deal with social media?
AL - tangentially in Student B's domments in ground 3?

J - address each ground - important KL has prepared very good grounds for appeal.

Clocks have not been changed in the court room. Court has risen - to return at 2pm.

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