Latest High Court decision on freedom of religious expression in professional misconduct proceedings

Background

Ms Leger was a teacher at Bishop Justus Church of England School (the School). She was described as a “born-again ‘conservative’ Roman Catholic Christian”. She explained that her faith is a mainstream form of Christianity which affirms the truthfulness of the Bible. Ms Leger described aspects of the teaching at the School which she considered were not Christian, in particular, LGBTQ+ relationships and ideology, and abortion.

In her Judgment, Mrs Justice Lang stated:

“The Claimant was frequently expected to share LGBTQ+ information and resources, including videos, with her pupils, in PHSE and Religious Studies lessons. She showed some LGBTQ+ material to her classes, but she found it distressing, misleading, and contrary to her beliefs, and so stopped doing so.”

The concerns regarding Ms Leger’s conduct were reported by Pupil A, who was a pupil in Ms Leger’s class. Pupil A had concerns about Ms Leger being transphobic in class.

Following disciplinary proceedings instigated by the School, the matter was referred to the Teaching Regulation Agency (the TRA).

Professional misconduct proceedings

A Professional Conduct Panel (the panel or PCP) considered a number of allegations regarding alleged inappropriate comments by Ms Leger, whilst teaching pupils.

The panel found a number of the factual allegations proved, and went on to find that Ms Leger’s conduct amounted to unacceptable professional conduct. The panel did not find that the conduct brought the profession into disrepute. The Secretary of State agreed with the panel’s recommendation that no prohibition order should be imposed on Ms Leger.

The panel’s full decision can be read here.

Judicial review

Ms Leger applied for judicial review of the findings. There were seven separate grounds of challenge.

Ground 1 – The panel failed to take proper account of relevant considerations, namely the immediate context in which the Claimant’s comments were made.

Lang J concluded that no error of law had been established. She stated:

“It is clear that the PCP properly considered the Claimant’s comments in the context of her known Christian beliefs, and took into account that they were made in the context of a discussion about LGBTQ+ rights in a single Year 7 Religious Studies lesson in a Church of England school.”

Ground 2 – The decision was unfair at common law and/or Article 6 ECHR in that crucial findings were made which were not included in the original allegations or evidence, and not put to the Claimant in cross-examination.

In her judgment, Lang J concluded that:

“It was not procedurally unfair for the PCP to rely upon these matters, even though they were not pleaded as part of the allegations, because they were part of the Claimant’s own case, and set out in her evidence. These matters were plainly relevant as part of the context within which the alleged unprofessional conduct occurred.”

Ground 3 – The panel misdirected itself that there was a duty on the Claimant to provide a broad and balanced curriculum. That duty only applies to schools but not to individual teachers.

Lang J concluded that whilst the statutory duty to have a broad and balanced curriculum rests on schools, it is teachers that deliver the curriculum.

She noted that the panel’s reference to the duty was in the context of Ms Leger’s own evidence that she was declining to teach segments of the curriculum addressing LGBTQ+ rights, because of her religious objections to their content. Therefore, the panel was entitled to conclude that the refusal by Mr Leger to teach this material was contrary to the school’s policy which refers to the statutory curriculum requirements.

Ground 4 – The panel misdirected itself on Convention Rights under Article 9 and/or Article 10 ECHR.

Ground 5 – The decision is incompatible with the Claimant’s Article 9 and/or Article 10 ECHR rights in that the interference is not prescribed by law and fails the three-stage test set out in Purdy v DPP [2010] 1 AC 345, at [40];

Ground 6 – The interference with the Claimant’s Article 9 and/or Article 10 ECHR rights is “not necessary in a democratic society” and fails the four stage test in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38, [2014] AC 700, at [20];

Grounds 4-6 were considered by Lang J together, as they relate to the interpretation of Article 9 and 10 ECHR.

In her judgment, Lang J confirmed that the panel correctly directed itself on the law. She stated that the passage cited from R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 succinctly captured the relevant principles. Lang J also concluded that the panel correctly directed itself in accordance with the proportionality principles in Bank Mellat v HM Treasury (No 2) [2014] AC 700.

Lang J did not accept Ms Leger’s submission that the Secretary of State’s interference with Articles 9 and 10 ECHR was not prescribed by law.

Further, Lang J found that the panel properly addressed and applied the proportionality test, and that the outcome was proportionate. She commented:

“I agree with the Secretary of State’s submission that what is striking about the decision is the effort that the PCP made to ensure that its findings went no further than it considered justified.”

Ground 7 – The publication of the decision is incompatible with the Claimant’s rights under Article 8 ECHR and data protection rights.

Lang J did not agree that publication of the decision was a breach of Ms Leger’s Article 8 rights. She concluded that publication of the findings was a “justifiable and proportionate sanction”.

The claim for judicial review was dismissed in relation to all seven grounds.

How can Blake Morgan help?

This article was written by Sarah Price, a senior associate in the regulatory team at Blake Morgan. Sarah acted as the panel’s legal adviser in the professional misconduct proceedings.

Blake Morgan has significant expertise in advising professional conduct panels and regulators. Find out more about our Regulatory team here.