The UK employment law community is awaiting a pivotal decision from the Employment Appeal Tribunal (EAT): the judgement in Lister v New College Swindon.
Following a preliminary hearing in May 2025, this appeal is one of the most significant belief discrimination cases of the year. For employers, particularly those in the education and public sectors, the outcome will define the practical boundaries between an employee’s right to hold gender-critical beliefs and an employer’s duty to protect service users from harassment.
The Background: Where we left off
The original Employment Tribunal (ET) decision in March 2024 was a comprehensive victory for the employer. Kevin Lister, a maths lecturer, was dismissed for gross misconduct after refusing to use the preferred name and pronouns of a transitioning student (“Student A”).
The ET found that while Mr Lister’s gender-critical beliefs were protected under the Equality Act 2010 (following the precedent in Forstater), his manifestation of those beliefs was “objectionable.” Key factors included:
- The power imbalance: Mr Lister was a teacher in a position of authority over a minor.
- The gender-neutral approach: Rather than using the student’s name, he gestured toward them, which the student found demeaning.
- Refusal to comply: During the disciplinary process, he maintained he would not change his behaviour, leaving the college with little choice but to dismiss him to prevent ongoing harm.
Why the appeal is critical
The EAT is now considering whether the first tribunal correctly applied the “boundary” between holding a belief and manifesting it. Mr Lister’s appeal argues that:
- The college’s gender reassignment policy was inherently discriminatory by requiring him to act against his conscience.
- The tribunal failed to properly balance his Article 9 (Freedom of Thought) and Article 10 (Freedom of Expression) rights under the European Convention on Human Rights.
For legal practitioners, the central question is whether an employer can mandate the use of preferred pronouns in a workplace or educational setting without it amounting to “compelled speech” or indirect discrimination.
What employers should watch for
This judgement will likely provide much-needed clarity on the “proportionality” test. We expect the EAT to address:
| Key Issue | Employer Consideration |
| Manifestation vs. Belief | At what point does expressing a belief become “manifestly objectionable” conduct? |
| Policy Enforcement | Can an employer fairly dismiss an employee solely for refusing to follow a “preferred pronoun” policy? |
| Safeguarding | Does the duty of care toward students/vulnerable groups trump an employee’s right to manifest their beliefs? |
Practical steps for HR and management
While we await the final word from the EAT, businesses should not remain static. We recommend:
- Reviewing equality policies: Ensure your policies on gender reassignment and religion/belief are balanced. They should emphasise respect and dignity for all without appearing to indoctrinate or silence protected beliefs.
- Training on clashing rights: Managers need to understand that two people can have competing protected characteristics. The goal is to manage the impact of the behaviour, not the belief itself.
- Focus on proportionality: If an employee refuses to comply with a policy, consider whether a less severe sanction than dismissal is possible, unless, as in Lister’s case, the employee makes it clear they will never change their conduct.
Looking ahead
The Lister appeal arrives at a time of heightened sensitivity, following the Government’s long-awaited (and still debated) guidance on gender questioning children in schools. The EAT’s decision will serve as a lighthouse for how these complex, often emotive issues are handled in the tribunal system for years to come.
Do your current Equality and Diversity policies align with the latest EAT guidance?
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lreynolds@refreshinglawltd.co.uk
Lousha Reynolds
Refreshing Law