LAST UPDATE | 22 Apr

ENOCH BURKE HAS applied to overturn a High Court finding from 2023 that he was fairly suspended by Wilson’s Hospital School, and a subsequent injunction issued that year which requires him to stay away from its grounds.

The teacher is also separately seeking to stop the latest hearing of the Disciplinary Appeals Panel (DAP) about his dismissal, due to take place this Friday, from going ahead.

Burke, who has spent more than 600 days in prison for refusing to obey the injunction, appeared in person at the three-judge Court of Appeal today to apply for an extension of time to overturn the 2023 rulings.

A person is normally required to file an appeal against a High Court decision within 28 days of the order being perfected.

However, the decisions in Burke’s appeal are almost three years old.

High Court judge Alexander Owens ruled in May 2023 that Burke’s suspension by Wilson’s was lawful after he voiced objections to a request by the school’s principal to refer to a student, who was transitioning at the time by a different name and pronouns.

Burke has consistently claimed that the direction was a breach of his rights, and his religious beliefs, under the constitution.

In July 2023, Judge Owens also made an order restraining Burke from trespassing at the premises of the school in Multyfarnham, Co Westmeath, but said that the German and History teacher was not prevented from attending outside the school gates.

The judge said that Burke had defied court orders and the board by attending the school following his suspension.

At a hearing at the Court of Appeal this morning, Burke argued that the High Court did not properly analyse the grounds of his suspension when the case was heard in 2023.

The teacher told the Court of Appeal that the High Court’s findings “hinged on” whether he would comply with the school’s request for him to address the transitioning student by they/them pronouns.

“I would ask the court this morning, was that right? Was that just that [Judge Owens] could find that the issue of suspension validly hinged on whether I would comply with the school principal’s direction?” Burke said.

“A door swings on a hinge: open; closed; open; closed. Judge Owens found that the hinge in my case – yes, no, suspend, don’t suspend – and the deciding factor in my suspension was one issue: whether I would comply with the school principal’s direction.”

Burke also argued that the principal’s original request had no basis under the Constitution or the Equal Status Act, both of which referred to males and females but not people with they/them pronouns.

He referred to an Irish Times article from 22 January this year, in which the Department of Education said that there were no guidelines for schools to use a pupil’s preferred pronouns, after a guide published by the Irish Council for Civil Liberties suggested they were legally obliged to do so.

The teacher claimed that this supported his original objection to the principal’s request in 2022.

“This is the Department of Education coming out – a State body – saying there’s no legal obligation,” he said.

“This is the law. This is the standing of such a request in law.”

He said that the decision by the school to suspend him for gross misconduct was a serious allegation comparable to theft, fraud or gross negligence, and that his refusal to address a pupil by their preferred pronouns did not meet the same bar.

Burke further argued that it had taken him almost three years to appeal the High Court’s rulings because he was engaged in other proceedings against the DAP.

He also claims to have had a “loss in confidence” in the Court of Appeal after a March 2023 judgment by Judge John Edwards that his constitutional right to freedom of religion had not been breached by the school’s instruction.

“This had a devastating effect on my confidence in the Court of Appeal,” he said today.

Burke argued that his appeal was of “manifest public importance” because it potentially impacted every teacher and school in the country.

(Left to right) Isaac, Martina and Ammi Burke arrive at the Court of Appeal ahead of Enoch's case today Alamy Stock Photo Alamy Stock Photo

School’s response

Responding to Burke’s submissions, counsel for the school’s board of management Rosemary Mallon said that the facts of Burke’s case were “so unusual and extraordinary” that the court should not consider granting him an appeal.

She argued that Judge Owens’s 2023 rulings were about Burke’s suspension, rather than his dismissal, and that Burke refused to engage with the original hearings after being removed from court for disruptive behaviour.

“Mr Burke was disorderly and in persistent contempt of court on the first day of the hearing and due to his behaviour he was asked by the trial judge to give an undertaking that he would obey the rulings of the court,” she said.

“He refused to do so, and he was therefore asked to leave the court.”

Mallon said that when Burke was given a chance by Judge Owens to attend court at the time if he could behave, he did not do so.

“I say what happened was his choice and was his responsibility,” she said.

She further argued that this was why Judge Owens did not conduct an analysis of the reason for his suspension, and that a court can’t be expected to investigate issues such as constitutionality in the absence of a person who wants to raise such an argument.

Mallon also said the statement given by the Department of Education to the Irish Times does not automatically mean requests to address pupils by their preferred pronouns are unlawful or illegitimate.

She told the court that even if such a statement was definitive, it was simply a view expressed by the department in the media, and not one which is determinative or binding in the courts.

She further said that there was nothing significantly new in the statement “that would excuse” a two-and-a-half year delay by Burke in filing an appeal.

Mallon said that there is “a need for finality” regarding the litigation brought by Burke and that all parties “need to move on”.

DAP hearing

The court also heard that the third iteration of the DAP intends to meet this week to decide on whether Burke was fairly dismissed.

The panel last met to hear the case in December, but dissolved before reaching a conclusion following a High Court challenge brought by Burke earlier this year.

A newly constituted panel has since been formed and may meet this Friday.

Burke submitted correspondence between himself and the DAP to the Court of Appeal at the end of proceedings, requesting that a stay could be put on the panel’s hearing.

He told the court that he did not want the hearing to take place until the Court of Appeal had made its ruling, because it may impact the DAP’s decision, after a previous iteration of the panel relied on Judge Owens’s findings.

Mallon said that while she was only representing the school’s board of management in this case, she believed that Burke should have to apply separately to the High Court for an injunction if he wanted to prevent the panel from going ahead this week.

The court rose for a time to consider Burke’s request, and decided that it did not have jurisdiction to prevent the panel from going ahead.

Judgment was reserved in whether Burke would be given leave to appeal Judge Owens’s rulings.

In a separate High Court hearing this afternoon, Burke sought an interim injunction preventing the DAP from meeting this Friday.

He sought the injunction on the grounds that both sides in the dispute relied on Judge Owens’s rulings, and that the DAP hearing should wait until the Court of Appeal decided on whether Burke’s case appealing those rulings would be heard.

Those proceedings will resume in the High Court tomorrow.