Enoch Burke asks High Court to halt school's disciplinary process against him

Enoch Burke (grey jacket) wants to make a counterclaim alleging the school's disciplinary proceedings are unconstitutional and unlawful.Picture: Brian Lawless/PA Wire

Teacher Enoch Burke wants court injunctions halting a school’s disciplinary process against him over an alleged breach of his rights to freedom of conscience, freedom of expression and freedom of religious belief.

In a counterclaim put before the High Court on Monday, he wants injunctions restraining the board of management of Wilson’s Hospital School in Co. Westmeath from conducting the process pending the hearing of his case that the process is unconstitutional.

A report last August by the then school principal, which invoked the disciplinary process, is in breach of natural justice and fair procedures, Mr Burke claims. The report, he alleges, is “replete” with findings of fact and conclusions which are “highly prejudicial” to him and also contains "false allegations" and "significant omissions".

The board’s decision to put him on paid administrative leave pending the disciplinary process is “unreasonable, unjust, unfair and unlawful” and the process itself breaches the relevant Department of Education circular, he claims.

"I should be going home with my father and my brother this evening," Mr Burke, who was brought to court on Monday from Mountjoy Prison, said. He wanted to be back in the school, he added.

He was committed to Mountjoy last week for contempt of a court order not to attend at the school, to outline his application.

He was committed after saying he could not, arising from his Christian beliefs, comply with an injunction preventing him attending or teaching at the school which last month placed him on paid administrative leave pending a disciplinary process.

The school commenced that process on foot of a report compiled by its then principal Niamh McShane, after he publicly voiced, at an event in June marking the 260th anniversary of the founding of the school, opposition to her direction in May to all staff to address a student, who wishes to transition, by a different name and to use the pronoun “they” rather than he or she.

The school took court proceedings after claiming Mr Burke was continuing to attend at the school despite his suspension. It got an injunction on August 30 requiring him to stay away and, when he failed to do so, got a committal order last week.

On Monday, his brother Isaac earlier told Mr Justice Conor Dignam that Enoch wanted to make a counterclaim alleging the disciplinary proceedings are unconstitutional and unlawful. The judge directed the production of Enoch Burke in court at 4pm.

Outlining his application at 4pm, Mr Burke said a disciplinary hearing was scheduled for Wednesday at the Mullingar Park Hotel and he argued the entire disciplinary process is unconstitutional and unlawful.

Barrister Rosemary Mallon, for the school, said that after Mr Burke very clearly indicated last week he would not be purging his contempt, it was decided the disciplinary meeting scheduled for Wednesday would be postponed. There was thus no urgency to this application and Mr Burke would be given notice of any rescheduled meeting, she said.

Mr Burke is effectively seeking to appeal a High Court order last Wednesday granting an interlocutory order to the school which continued temporary orders restraining him attending there, she said.

Mr Burke disagreed he was seeking to appeal the order and said he was entitled to the injunctions sought in his counterclaim on grounds including that permitting any disciplinary hearing to proceed pending the outcome of his counterclaim would breach his rights.

Enoch Burke's counterclaim

In an affidavit grounding his counterclaim, Mr Burke, of Cloonsunna, Castlebar, Co. Mayo, said he has been employed by the school since August 2018 as a teacher of German and History and has been on a permanent contract of indefinite duration since August 2020.

He said he has a record of “exemplary” and “unblemished” employment and has always striven to be a “caring and empathetic” teacher and to act in the very best interests of all his students.

On August 15, he received a letter from the principal enclosing a copy of a report prepared by her and furnished to the Board of Management. The report was stated to be in accordance with stage 4 of the procedures for the suspension and dismissal of teachers as provided for in a Department of Education circular.

Mr Burke said the background was that on May 9, 2022, all school staff received an email in which the principal “demanded” staff address a student by a new name and the pronoun “they”. He expressed concerns about that in an email exchange with Ms McShane on May 10 and, at a staff meeting later that day, described it as incompatible with his Christian beliefs, the Christian ethos of the school and the welfare of children.

A few days later, he attended a meeting with Ms McShane and the deputy principal, John Galligan, regarding the matter. On May 27, he received an email from Ms McShane which stated, inter alia, in view of the ethos of the school and its obligations under the Equal Status Act 2000, she expected he will communicate with the relevant student in accordance with the wishes of that student and their parents.

Mr Burke said the school is a Church of Ireland school and that church had, in June 2002, stated its teaching “recognises two genders – male and female – and is unchanged”.

Claims by Ms McShane in her August 15 report that her direction was in keeping with the ethos of the school and was a reasonable and legitimate instruction to staff “are not true,” he said.

On June 21 last, he attended a service in the school chapel at the close of which he stood up and spoke for less than two minutes. The transcript of his contribution showed, inter alia, he referred to Ms McShane’s email “asking us, demanding us, to accept transgenderism in the school”.

He felt “out of respect” to Andrew Wilson – the founder of the school – he must say “openly and publicly here, that is something that is contrary to the Scripture…”. He had said he would “beg” Ms McShane to withdraw that “demand”.

That’s something I will not do as a Christian, I will not accept transgenderism, it’s something I cannot do, and that’s something that’s opposed to the Scripture.

Ms McShane’s August 15 report made “entirely false” allegations that his contribution was “an outburst” that was “highly disrespectful” of her, “upsetting and embarrassing for all present” and showed “total disregard for school management”, he said.

Her report stated she had invoked stage 4 of the disciplinary process because, in her opinion, Mr Burke’s behaviour, as alleged, “may amount to gross misconduct”. 

It was not acceptable, the report said, for a teacher to challenge school policy in such a public place and his public statement regarding his non-acceptance of transgenderism was not in keeping with the ethos of the school or the expected standards of teachers. The report stated Ms McShane had serious concerns about how Mr Burke may act in the school in future in circumstances where he has stated his personal views on transgenderism in school and at a public event after the school term had ended.

Mr Burke said those statements are in disregard of his constitutional rights and there was no mention in the report of his rights to freedom of expression, of conscience and of religion. “The invoking of a disciplinary process as a result of a citizen’s profession of his religious belief is unconstitutional and unlawful.”

The chapel service was followed by a dinner after which he approached Ms Shane to ask could he ask her “one last time” to withdraw the request, he said. The report’s allegation that he had followed her around the room and continued to question her loudly was “entirely false”.

Paid administrative leave

At a school board meeting on August 22, he opposed being placed on paid administrative leave pending the disciplinary process, saying that was an “extremely serious” step that would put a significant blemish on his professional record, good name and character. 

He was informed on August 24 he was being placed on paid administrative leave pending the outcome of the disciplinary process. The board’s letter said, inter alia, he had offered no assurance that, pending the disciplinary hearing, he would “refrain from misconducting yourself in the school in a manner similar to that alleged by the principal”.

Mr Burke said no such assurance had been sought from him at the August 22 meeting. He wrote to the board the following day saying he did not regard “holding the Christian belief on male and female to be a case of misconduct or risk to a school but a fundamental constitutional right”. 

He also described the disciplinary process and the board’s decision on his suspension as “unreasonable, unjust and unlawful”. The hearing is continuing.