Was a doctor who was dismissed for refusing to use transgender Service user’s preferred pronouns discriminated against?
Currently there is an intense focus in the media on treatment and protection of “gender critical beliefs”. High profile cases such as Forstater v CGD Europe and Others has brought intense media scrutiny on the current and ever evolving area of law relating to religion or belief discrimination. However a number of questions in relation to these protections remain, particularly pertaining to both manifestation of those beliefs and how these protections may work alongside protection against discrimination on the basis of gender reassignment. Some early level of clarification as to the Tribunal’s likely approach to these matters was offered by the Employment Appeal Tribunal in the recent case of Mackereth v Department of Work and Pensions and Others  EAT 99
Dr Mackereth was a Christian doctor who was employed as a Health and Disabilities Assessor by the Department of Work and Pensions (DWP) and contended that he held the following beliefs which should be subject to protection under the Equality Act:
- in the truth of Genesis 1:27, that a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive and sinful;
- a lack of belief in “Transgenderism” and “gender fluidity”, such that he does not believe
- a person can change sex/gender,
- that “impersonating” the opposite sex may be beneficial for a person’s welfare, or
- that society should accommodate/encourage such “impersonation”; and
- a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex.
It was accepted that Christianity was a protected belief for the purposes of the Equality Act 2010, but the specific beliefs set out above were disputed by the DWP as qualifying for protection.
During an early stage in Dr Mackereth’s employment he was undertaking induction training at which time he explained his beliefs as set out above. Specifically, Dr Mackereth made clear that in the event of undertaking an assessment of any Transgender service users, he would not respect the use of their preferred pronouns, but would rather utilise pronouns related to the sex assigned at birth. The DWP sought clarification from Dr Mackereth as to the specifics of his belief and considered whether or not his belief could be facilitated within the role he was employed to undertake. In the circumstances whilst this investigation remained ongoing Dr Mackereth resigned from his role and sought to claim discrimination in the form of indirect discrimination, harassment and direct discrimination for his beliefs.
Whilst the Tribunal initially found that the Dr Mackereth’s beliefs as set out above did not qualify for protection the EAT overturned this assessment and rather considered that the beliefs (with the exception of (c) were protected. They then further considered the merits of each of Dr Mackereth’s specific contentions of discrimination
A claim for direct discrimination arises where an employee is treated less favourably because they hold a relevant protected characteristic.
Harassment occurs where an employer subjects an employee to treatment which is unwanted and is ‘related to’ one or more of the protected characteristics which are covered where the unwanted conduct has the purpose or effect of either
- violating the victim’s dignity; or
- creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim
In this instance, Dr Mackereth contended that he had been subjected to less favourable treatment and harassment as a result of his belief by being asked to renounce his belief and other alleged issues.
Ultimately, forgoing the evidentiary burden (namely that the Tribunal did not accept that the alleged less favourable treatment had occurred) the EAT found that even if the less favourable treatment had occurred, the Tribunal was entitled to draw a distinction in the reason for the treatment between the belief itself and the manifestation of that belief. It was not unreasonable to treat Dr Mackereth less favourably on the basis of his refusal to utilise preferred pronouns, when an employee not sharing his belief (but engaging in the same conduct) would have been subject to the same treatment.
Indirect discrimination occurs when an employer applies a provision, criterion or practice (“PCP”) to all staff (including those not holding the relevant protected characteristic) which puts someone of a particular group at a particular disadvantage when compared to other persons and the employer cannot show that PCP to be a proportionate means of achieving a legitimate aim.
In this instance, the PCP considered was the need for employees to refer to service users by their preferred pronouns. The Tribunal accepted that this would put those holding Dr Mackereth’s beliefs at a particular disadvantage. However, the EAT also found that despite this disadvantage, it was, fundamentally, a proportionate means of achieving a legitimate aim for DWP to implement a policy requiring their employees to use the preferred pronouns of service users. DWP relied upon the following aims:
- “to ensure transgender customers were treated with respect and in accordance with their rights under the EqA, in particular to ensure such customers were not discriminated against in respect of services provided by the first respondent, its employees or contractors; and/or
- to provide a service complying with an overarching policy of commitment to the promotion of equal opportunities and, therefore, requiring employees and contractors to act in a way which did not discriminate against others.”
Ultimately, the EAT affirmed the Tribunal’s decision that the conduct was a proportionate means of achieving a legitimate aim. Crucial to the finding that this was proportionate was the Respondent’s consideration of alternatives (and the fact the same was unworkable) as well as the fact that whilst investigations were undertaken, Dr Mackereth was not suspended or subjected to disciplinary proceedings.
This matter offers a timely reminder of the need for the Tribunal to balance protections under the Equality Act and the fact that simply because a belief is protected, employees must think carefully about the manifestation of those beliefs and in particular, their impact upon others. Whilst this remains a developing area of law with a large number of active cases currently being considered(and this matter is likely to be particularly fact specific as it relates to a fairly unique set of facts) it is important that employers and employees both consider how such cases can be applied in the workplace and their necessary impact and proportionality of conduct.
For further information on this topic please contact Michael Tait at [email protected]