Introduction
By now pretty much all of us will have come across the ‘content’ on social media involving Mr Enoch Burke, as reported in the Irish Independent newspaper (hereafter referred to as Burke for efficacy, as are all others people involved in this case referred to by their second name).
This a high profile employment law unfair dismissal case in the Republic of Ireland. In this case, Burke, a teacher, was sacked.
Before giving this opinion, I state the background facts of the case as I understand & perceive them to be to the best of my ability. I also state the legal procedures related to these, albeit I am not from Ireland so I do not know the nuances of these. *If any of these facts or procedures are wrong, please contact me on the email below & inform me accordingly*.
I should also state that I do not seek to provide an opinion on this lightly & poke my nose in where it does not belong – this case has been going now for close to 4 years & has not movied forward at all (if anything it is going backwards). I write this Article as an attempt to provide a cooler head with an external opinion on it, done in the hope it can assist in some way the matter being put on a path towards resolution (one way or the other).
Background facts
From broad research on the public documents related to this case, these are understood to be the material facts as I perceive them.
- In 2022 Burke was a history teacher at Wilson’s Hospital School, a Church of Ireland Faith School (not a Roman Catholic faith school).
- In early spring 2022, there was a boy in Wilson's school whose parents sought for him to be referred to as 'they', not 'he' or 'him'.
- Wilson's school consulted with the boy’s parents in relation to this. A memorandum by school management was then sent round by email to all teachers & staff to inform them that the boy had to be referred to as 'they', not 'he' or 'him'.
- In May 2022 Burke by email formally opposed referring to the boy as 'they' on the grounds of his religious beliefs.
- On June 21st 2022, there was a service hosted by Wilson's School. It is alleged that a crowd of people was in attendance. It is alleged that Burke without invite interrupted the service & addressed the congregation for a short period (the exact time period is not known) against the transgenderism in the school. This allegedly led to some pupils getting up & leaving, though this is not known for sure.
- Disputes between teachers & the school management happen in schools every single day. 99% of these disputes are dealt with by discussion, diplomacy, compromise, acceptance/apology, and everyone moving on. Sometimes management & staff remain at loggerheads. The school has statutory powers to deal with disputes that cannot be resolved – formal investigation, warning, suspension (with pay), & sacking.
- In August 2022, the issue regarding Burke was escalated, and he was suspended by the school head teacher. The official reasons given are not purely the email opposition to the gender pronouns, but other incidents too including his behaviour at the service.
- In January 2023, Burke was sacked by the school at a meeting of the full school board. These processes have been deemed to be lawful by the Irish Court of Appeal, though Burke is appealing this.
- Despite this sacking, Burke has continued to turn up at the school expecting to be re-employed & given classes to teach. To be specific, it is understood that he did not just protest outside the gates on the public path. It is understood he actually entered onto the property, and indeed actually went into the building & was in the corridors.
- The school obtained an injunction against Burke entering the school. Burke ignored this injunction & entered the school. Burke has gone to jail 4 times for contempt of court - entering property in breach of a Court order not to do so. Burke is also understood to have lost significant savings in fines for doing so.
- There is a lot of speculation online with comments & videos in this case. It would only be after a trial that the full factual matrix could be stated.
Personal interpretation of medical field of transgenderism
Transgenderism is a specialist medical field. An expert would be required to clarify the position on this.
This case has nonetheless sparked endless speculation on this matter on internet forums.
As a non-expert, this is my personal intepretation on a lot of the discussion on this. 'Transitioning' is an invasive & permanent urge to change gender, which is a psychiatric medical issue. If this is brought before a person's GP, they may deem that it's best to leave it alone & see if it goes away, or that medical treatment is required to address this. The medical treatment may be chosen to try remove the urges via therapy, or the other medical option to mitigate this by taking hormones of the opposite sex as prescribed by his GP. The taking of these hormones can have powerful effects. For example a male taking female hormones can result in side effects of the development of feminine features such as breast etc, with masculine features (jawline, protruding eyebrows & forehead, facial hair, broader boned with strong shoulders & hips) either not developing at all or shrinking. If a person is deemed by a doctor to be beyond retrieval of the urges of being transgender, the early taking of hormones make it much harder to know a person is transgender if they are cross-dressing in public in future (to avoid a lifetime of being sneered at & called names).
There are widely diverging views amongst psychiatriats on diagnosis, prognosis & treatment plan for a person feeling gender change urges.
Personal interpretation of Christian theology on transgenderism
Christian theology is a specialist philosophy field. Again, an expert would be required to clarify the position on this.
This matter has however sparked lots & lots of debate on Christian theology.
To give my personal interpretation on this debate, it seems that it is a well established school of thought in the Christian faith that a boy taking these female ‘hormones’ is perceived to simply be taking class A hard controlled drugs, in which they are self-harming, destroying their reproductive organ, & castrating themselves. The Christian teaching is that it is much preferred that the person undergo physical fitness training with a personal trainer as well as therapy with a psychologist to try to gain some self-confidence in their appearance (if that fails, the Church is at a loss for what to do…).
This debate does however raise the question of whether there only one school of thought in the Christian faith over how transgenderism is to be addressed. Is the Christian faith's teaching on transgenderism being over-simplified? It is a well established school of thought in the Christian faith that lepers should not be ostracised & instead should be integrated. Is transgenderism just a modern form of lepresy, and were the school acting in accordance with the Christian faith, particularly its values on tolerance & integration for those with lepresy?
There is room for debate amongst theologists on this matter.
Basics of employment law
The way Burke has reacted to his sacking requires the most elementary points of employment law to be clarified.
To be clear, teachers are employees, and employment law applies to teachers equally as it does all other employees in society.
When any employee in any workplace is sacked by the management, they are sacked – it is not the case that management require a court order confirming that an employee is sacked – the employee is sacked & is not allowed to turn up at the workplace again.
Once the employee's manager/boss tells them they are sacked, they are sacked. After that moment they are a former employee who must leave that workplace & not return again.
An employee being sacked can be deeply traumatic & mental health problems of varying degrees can be caused (even if they were lawfully sacked).
A sacking is especially traumatic in a job like a teacher which is perceived to be employment for a full career as well as good pension, and in which the former teacher probably harboured hopes of promotions into management if their students performed well in exams.
Where there is an element of whistleblowing over a sacking, with the employee believing they disclosed information for the greater good of the organisation & suffered because of this, mental injury due to the sacking is even more common as this makes it hard to find a new job as prospecive employers do not want to take on troublemakers due to the time & hassle it costs them.
When any individual has been sacked as an employee, it could be said to be delusional for them to think that if they turn up at their former workplace whilst a legal process is ongoing over it, then the legal process will be ignored & they will get re-employed & given work to do.
If a sacked employee repeatedly has the delusion that turning up to their former workplace will lead to them being re-employed, & continues to attend their former workplace every day, it could be said to be a red flag that the former employee has suffered a mental injury of some degree or another.
If it is the case that a mental injury has been suffered, especially where there is whistleblowing involved, then the damages & compensation in the case could be significant.
Procedure
Despite this saga running on for close to 4 years, next to no progress has been made.
Burke’s sacking was made by the Wilson’s school board, but this is far from the end of the matter legally. The legal procedure in this matter is far from finished, rather it is only in its early stages.
There are 2 more avenues for Burke to pursue. (i) Burke’s sacking can be appealed to an education panel board to determine this matter - if they deem the sacking was unlawful, they can redepoly him in another school. (ii) If they deem the sacking was lawful, this matter can go to the Court, the Employment Tribunal. The Employment Tribunal does not have the power to re-deploy Burke, but they do have the power to award him damages/compensation if the dismissal was deemed to be unlawful.
Burke has however delayed these 2 processes from going ahead in appealing that the School Board Hearing was not a Fair Hearing. He is currently appealing that to the Irish Supreme Court, presumably to seek a re-hearing of this. The education panel has stated that they cannot proceed until Burke has argued his point about whether the school board Hearing was a fair Hearing.
Arguments for each side
Given the size of the potential damages, when/if this case on the lawfulness of the original dismissal ever does reach trial at the Employment Tribunal, it is going to be extremely hard fought.
This case will likely require 3 experts as well - on both the specialist field of transgenderism & of theology, and then another medical expert on whether Burke suffered mental injury as a result of his sacking.
There are so many questions both sides can legitimately ask of a Court.
The school may ask: What right does a classroom teacher have to disobey the simple naming orders made by a child's parents to be referred by a 'they' pronoun, especially when confirmed & agreed by the school's management? Should the teacher not seek a 'not fit for work' note from their GP for stress if they cannot deal with this & look for a job in another school with management more aligned with their beliefs? Should the transitioning child not just be put in classes with teachers whose faith beliefs are not as forthright (or interpret their faith differently), and keep them out of the classes of teachers with faith beliefs against this, which was exactly what Wilson's School did? Can a teacher be allowed to air this matter in public - do they not have to raise their grievances & explain their faith objections in private meetings? Can a teacher ever be allowed to interrupt a school service and without invitation hijack it to air grievances publicly about the school's policy on pronouns used for pupils?
Burke may ask: A Teacher has taken a job at a faith school expecting that the faith will be followed in the school, so what right does a parent or doctor have to order a teacher to do something for their child which so fundamentally does not comply with the school's Christian faith? How can a parent set new values for the whole school? If the parents don't abide by the faith of that school, should they not move their child to a non-denominational school/non-faith school or seek to home school? How can a teacher in a faith school be sacked for adhering to that faith? In a faith school, do teachers not have the right to publicly disclose that the school is not following the teaching of that faith? When the school sent out the memo ordering all teachers to be complicit in the non-gender pronouning of a child, should they not have stated that Counselling was available to any teacher who may feel traumatised by this (who may perceive themselves to be acting complicitly in the eventual potential castration of a child taking hormones of the opposite sex if they agree to call them 'they' & legitimise what they are doing)?
Realistically though, there are many different ways & methods for how the arguments on this matter can proceed (to simplify it to expedite the process, or wrestle with its most acute complexities). It is certainly an interesting & polemical case to keep an eye on, & hopefully the Irish Courts can write a first-class & fair Judgment on this…
Opinion
The question the whole of Ireland & the whole of the world wants answered is, was Burke’s original dismissal from Wilson’s school lawful or not?
Christians across the world are interested in whether Irish society will provide a ‘yes’ or ‘no’ definitive answer to this, and an explanation. What are the schools & teachers to do exactly when this type of situation inevitably arises again in the future with a different pupil?
Burke’s criminal behaviour in disobeying Court orders is now an irritating distraction from this key point of law being answered in the processes described above of the Education Panel & the Employment Tribunal, though as stated above, this may show the mental injury suffered as a result of his sacking...
There are 2 similar precedents in the UK where nurses refused to participate in abortion processes because it was against their religious beliefs and were sacked. Both of these cases ended up in the UK Supreme Court, thereby showing the complexity & importance of matters like this one - Janaway v Salford Health Authority [1988] UKHL 15; Doogan and another v Greater Glasgow and Clyde Health Board [2014] UKSC 68. Burke's case is even more complex than these ones as he aired his grievances publicly.
Burke needs to consider getting independent advice away his closest circle of friends & the Burke family. The Burke family in my view are not capable of managing Enoch to successfully winning this case. A team of independent professionals arguing the complexities & nuances of Burke's case (in which Enoch insulates himself from his family so that he can concentrate) could give him the best possible chance of winning what is an extremely difficult case vs a highly formidable opponent in Wilson's School supported the Irish Educational Secretary of State & Irish Government.
It is also my understanding that the Court has mentioned that Burke's family may be guilty of being an accomplice as part of a gang to commit contempt of court (proving advice, funding, & encouragement, and he is often seen walking at the back when he arrives at Court), which can give rise to prosecutions & them being liable for all the fines & damages accrued. This would of course be a turn of events the Burke family should seek to avoid at all costs.
This is not intended to be disrespectful to the Burke family, who are smart people doing their very best, but they are too emotionally involved. With Enoch's family in Enoch's corner he has lost his job, his savings, his liberty being jailed 4 times, and quite possibly his mind, with the next thing to go being his soul. The lad seems to be taking one hell of a beating so the Burke family tactics do not seem to be working, and they need someone who can box smart & be vicious only when they smell blood... You never know though, his opponent may become exhausted or sympathetic & give in, or on the other hand & probably more likely, his opponent might just keep giving him a beating to set the example against other teachers or employees generally speaking out against employers & Courts in such a manner (formerly called the 'master & slave' relationship until the 1920's.)
Warning: This is not professional legal advice. This is not professional legal education advice. This is an opinion on a legal matter believed to be of public importance. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.