379: Doctor dismissed for refusing to use preferred pronouns: a case of discrimination?
The Employment Appeal Tribunal (EAT) upheld the Tribunal’s earlier decision in Mackereth v Department for Work and Pensions (DWP), that a Christian doctor was not subject to religious or belief discrimination when he was dismissed for refusing to address transgender service users by their preferred pronoun.
This case illustrates that, even if a belief is protected, employers have the right to restrict its manifestation in the workplace in order to pursue a legitimate aim, provided this is necessary and proportionate.
Dr Mackereth applied to work as a health and disabilities assessor for the DWP. During his induction course, he revealed that that due to his Christian beliefs he could not refer to transgender claimants using a pronoun or title inconsistent with their birth gender. This contravened the DWP’s policy of addressing transgender claimants using their chosen pronoun. Attempts were made to accommodate Dr Mackereth’s belief but there were no suitable alternative roles, and it was not practicable to ensure that he assessed only non-transgender service users. Therefore, he was unable to take up the position.
Dr Mackereth subsequently brought claims of direct discrimination, harassment and indirect discrimination on grounds of religion or belief, relying on three specific beliefs:
- a belief in statements from the Bible that a person is created by God as either male or female, and cannot change sex or gender at will;
- a lack of belief in transgenderism and gender fluidity; and
- a belief that it would be irresponsible and dishonest for a health professional to accommodate or encourage anyone’s “impersonation” of the opposite sex.
The Employment Tribunal (Tribunal) dismissed all Dr Mackereth’s claims, ruling that his beliefs did not meet the criteria set out in the case of Grainger plc v Nicholson for establishing whether a religious or philosophical belief is protected under the Equality Act 2010. In particular, his beliefs were not worthy of respect in a democratic society or compatible with human dignity, and they conflicted with the fundamental rights of others (the fifth criterion).
The Tribunal went on to state that even if his beliefs were protected, Dr Mackereth had not suffered any discrimination or harassment. The reason for his treatment was the DWP’s wish for transgender service users to be able to use their preferred pronouns, and anyone refusing to comply would have been treated in the same way. His indirect discrimination claim was also rejected because the DWP’s aims, regarding ensuring equal opportunities for transgender users, were necessary and proportionate.
On appeal, the EAT ruled that the Tribunal’s approach to the Grainger criteria was flawed. Most crucially, it had imposed too high a threshold when considering whether Dr Mackereth’s beliefs were worthy of respect in a democratic society. The threshold had to be set at a low level to ensure that minority views that might cause offence are protected, in addition to beliefs acceptable to the majority. Therefore, although Dr Mackereth’s beliefs might cause offence to many, this did not justify excluding them from protection. The EAT also ruled that the Tribunal was wrong to hold that Dr Mackereth’s beliefs did not relate to weighty and substantial aspects of human life and behaviour (the third Grainger criterion).
Despite ruling that Dr Mackereth’s beliefs and lack of belief were protected under the Equality Act, the EAT also upheld the Tribunal’s findings that he had not suffered direct or indirect discrimination or harassment.
This judgment is consistent with the court’s ruling in Forstater v CGD Europe – that only beliefs which have the effect of destroying the rights of others will fail to be worthy of respect in a democratic society – and makes it clear that setting a low bar is necessary to protect minority views that may be offensive or shocking to the majority. This is a tricky area of discrimination law and, as the EAT stressed here, Tribunals have to balance competing interests without expressing views on the merits of a particular belief. It should be noted that Dr Mackereth intends to appeal this decision.