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02 December 2019

206: No discrimination where Christian doctor was dismissed for refusing to address transgender patients by their preferred pronoun (Employment Tribunal)

In Mackereth v The Department for Work and Pensions (DWP), an Employment Tribunal has found that a Christian doctor was not discriminated against on the grounds of his religion after being dismissed for refusing to address transgender patients by their preferred pronoun.

Dr Mackereth was engaged to work as a Health and Disabilities Assessor for the DWP. The DWP’s Policy on Gender Reassignment states that transgender individuals should be addressed by their preferred pronoun and title, and that penalty for non-compliance is suspension or dismissal. Dr Mackereth does not believe that society should accommodate or encourage transgenderism, based on his Christian belief that God created only males and females and that a person cannot change their gender at will. His refusal to agree to address transgender service users by their chosen pronoun in breach of the DWP’s policy led to his summary dismissal. He subsequently brought claims for harassment and direct and indirect discrimination on grounds of religious belief.

The Tribunal rejected Dr Mackereth’s claims. The DWP accepted that Christianity is a protected characteristic under the Equality Act 2010 but argued that his religion had to be distinguished from his beliefs about transgenderism. Following the test established in Grainger plc and others v Nicholson, the Employment Tribunal agreed with the DWP that Dr Mackereth’s beliefs failed to respect the dignity of transgender individuals and conflicted with their fundamental rights. In addition, his refusal to address a transgender person by their chosen pronoun or title would have amounted to unlawful discrimination or harassment under the Equality Act. It was also clear that Dr Mackereth was not treated less favourably as a result of his religion, since any other person who had refused to properly address transgender service users, who did not hold those beliefs, would have been treated in the same way.

This case illustrates that the right to manifest a religion or belief is subject to the need to protect human dignity and the fundamental rights and freedoms of others. Although it may be difficult to balance the rights of the different parties, employers must ensure that they take proportionate and reasonable steps to address inequalities. For example, in this case, the employer considered alternatives to the employee continuing in his role but concluded that there was no other way of avoiding him having to assess transgender service users. In order to minimise the risk of discrimination claims, employers should ensure that these issues are addressed in equal opportunities policies and training.

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