Enoch Burke seeks to appeal against judgment which found suspension lawful

Enoch Burke has argued that he should be granted an appeal against a High Court decision that his suspension from a Co Westmeath school was lawful.

In May 2023, Mr Justice Alexander Owens ruled it was lawful for Wilson’s Hospital School to suspend the history and German teacher in 2022.

Following the judgment, Mr Burke had 28 days in which to appeal, but on Wednesday, he appeared in front of the three judges of the Court of Appeal to make his case for an extension of time.

The school and Mr Burke have been in a long-running legal dispute stemming from incidents over a request from the former’s then-principal to address a student by a new name and the pronoun “they”.

Mr Burke, an evangelical Christian, argued that his suspension was unlawful and went against his right to express his religious beliefs.

He has spent more than 650 days in jail for contempt of court after repeatedly trespassing at the school.

Addressing the judges on Wednesday, he outlined a number of reasons for seeking an appeal two-and-a-half years after the original judgment.

They included his involvement in a number of legal actions, in which he represented himself, his imprisonment and because he had “lost confidence in the Court of Appeal” following a previous decision.

The barrister representing the school’s board of management, Rosemary Mallon, described the case as “unusual and extraordinary” and said an extension of time to allow an appeal should not be granted.

She said the reasons Mr Burke gave for the delay were “not legitimate or valid reasons” and said there was a “need for finality” in the matter given that over two and a half years had passed since order had been perfected.

Mr Burke said his suspension “was contrary to the constitution and the law” and the court had not properly analysed the grounds for his suspension.

He said Mr Owens’ decision “hinged” on one factor – whether or not Mr Burke complied with the direction of the then-principal to refer to a pupil using they/them pronouns.

“Was that right? Was it just?” he asked.

He said “the central fact” of the case has never been disputed, “that I failed to comply with the principal’s instructions”.

But he said the court “fundamentally erred” by failing to analyse the principal’s instructions.

He said the constitution or the Equal Status Act, which he said both refer to males and females, but not they/them pronouns, meant the principal’s request was not valid.

He also referred to a statement, given by the Department of Education to the Irish Times in January of this year, which said schools were not legally obliged to use a pupil’s preferred pronouns.

He said the issue at the centre of his appeal was “of manifest public importance”, and relevant “to every teacher, and every school in the country”.

Responding to Mr Burke’s points, Ms Mallon said the decision was not “a declaration as to the lawfulness of the principal’s direction or instruction”, but about “the lawfulness of the decision to suspend”.

She added a worker can be suspended and ultimately not found guilty of gross misconduct, and that the suspension stage is “very different” to the disciplinary stage.

She said during the 2023 hearing, Mr Burke was “disorderly and in persistent contempt of court”, and he was asked to leave the court.

She said he could have made his arguments about the legality of the directions he had been given by the school’s principal, but was not in court.

“He was never precluded in making arguments, he precluded himself,” she said.

She said the reasons Mr Burke gave for the delay were “not legitimate or valid reasons” and said there was a “need for finality” in the matter.

President of the court Ms Justice Caroline Costello said judgment on the matter was reserved, and when asked for a timeline on when a decision might be made, she replied: “We will do it when we can, everybody has different pressures with work.”

Mr Burke was supported by five members of his family during the hearing, his father and mother Sean and Martina, as well as his brother Isaac and sisters Ammi and Jemima.