Policy on use of service users' preferred pronouns was a proportionate means of achieving a legitimate aim.
In October 2019, we reported on the Employment Tribunal's decision in the case of Dr Mackereth, a doctor engaged through a contractor, Advanced Personnel Management Group (UK) Limited (APM), to work as a health and disability assessor for the Department for Work and Pensions (DWP). See our article, Doctor who refused to use pronoun chosen by transgender patients was not discriminated against (available on our website). The EAT has now published its decision on Dr Mackereth's appeal.
Dr Mackereth is a Christian who believes that God created only males and females and that a person cannot choose their gender. During his induction he made clear that he would not refer to transgender people by their preferred pronoun as was required by a DWP policy. Alternative roles and procedures were explored which would not require Dr Mackereth to work with transgender people, but these were not found to be feasible. Dr Mackereth decided he could not work under the DWP policy and APM confirmed that he would not be able to work in the role.
Dr Mackereth brought claims for harassment, direct discrimination and indirect discrimination against both the DWP and APM.
The tribunal decision
The tribunal dismissed all the doctor's claims. It held that Dr Mackereth's beliefs were not worthy of respect in a democratic society, not compatible with human dignity and conflicted with the fundamental rights of transgender individuals, and that they were not therefore protected under the Equality Act 2010.
The tribunal also found that, had the doctor's beliefs been protected, the DWP would have been able to defend the indirect discrimination claim as the policy was a proportionate means of achieving a legitimate aim. This was because the harm to vulnerable service users of accepting Dr Mackereth's stance would have outweighed the discriminatory impact on the claimant.
The EAT decision: Mackereth v DWP
Dr Mackereth's belief is protected
The EAT overturned the tribunal's decision that Dr Mackereth's Christian belief or his lack of belief in "transgenderism" were not protected.
The EAT noted that the tribunal had come to its decision before the judgment of the EAT in Forstater v CGD Europe and others (see our article on this decision: Claimant's gender critical belief is protected under the Equality Act on our website). The EAT stated that the tribunal had imposed too high a threshold when considering whether the belief was worthy of respect in a democratic society, compatible with human dignity and did not conflict with the fundamental rights of others. It noted that the Forstater decision made clear that minority beliefs should be protected, even where those beliefs might offend or shock others. It agreed that a belief will meet the threshold for protection if it does not destroy the rights of others.
Dr Mackereth was not discriminated against
However, the EAT went on to agree with the tribunal that Dr Mackereth had not been discriminated against on the basis of his belief or lack of belief.
On the direct discrimination claim, the EAT held that the tribunal had been entitled to draw a distinction between Dr Mackereth's beliefs and the way he wished to manifest those beliefs. It found that any health and disability assessor who refused to use service users' preferred pronouns would have been treated the same way, regardless of their beliefs.
On the indirect discrimination claim, the EAT held that the tribunal had properly weighed the discriminatory impact on Dr Mackereth against the impacts on vulnerable service users of not insisting that he follow the policy. It noted that the tribunal had considered whether less discriminatory alternatives would be feasible, such as triaging transgender people to ensure they were not seen by Dr Mackereth. However, it decided that the tribunal was entitled to find that the particular sensitivities for transgender people accessing the service meant these alternatives would in themselves cause offence.
Comment
This case reflects the current case law on so-called "gender-critical" beliefs. Dr Mackereth has expressed his intention to appeal. We are still awaiting the decision of the employment tribunal in Forstater as to whether the claimant was discriminated against on the basis of her protected belief.
Employers should continue to take what steps they reasonably can to prevent workplace discrimination and harassment. This will include putting in place clear and well-communicated codes of conduct, policies, and statements of organisational values, organising induction and regular update training on equality and diversity, and taking robust action to deal with breaches of such codes and policies.
A key learning point from this case is the importance of being able to justify policies and practices which put groups sharing a protected characteristic at a disadvantage. This means being clear about the aims of the policy and explaining how it meets the needs of the organisation, commissioners / stakeholders, service users and customers. It also means thinking through policies to ensure that they do not go further than is necessary to meet those aims. When an employee raises concerns about a policy or way of working, employers should consider whether there are alternative approaches which would avoid the discriminatory impact on the employee. Documenting these thought-processes and considerations at the time will assist employers where employees go on to bring discrimination claims.
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