Requirement to Use Service Users' Preferred Pronouns Did Not Constitute Belief Discrimination
The Employment Appeal Tribunal (EAT) has confirmed that whilst the Equality Act protects some minority beliefs, a Christian doctor was not discriminated against by the requirement on him to use the preferred pronouns of transgender service users.
Failure to Use Preferred Pronouns of Transgender Service Users
This is the first application of the Forstater case, you can find our report on that case here.
In the case of Dr David Mackereth v Department for Work and Pensions and Anor, Dr Mackereth, was employed by the Department for Work and Pensions (DWP) as a health and disabilities assessor between 29 May and 27 June 2018.
Dr Mackereth is a Christian and holds a more narrow belief that a person cannot change sex or gender. He also has a lack of belief in transgenderism and gender fluidity. He refused to use the preferred pronouns of transgender service users in the course of his employment, which was in direct conflict with DWP's policies. The DWP explored whether arrangements could be made to accommodate Dr Mackereth's beliefs or to redeploy him to another role, but neither was possible. Dr Mackereth resigned his role and brought claims for direct discrimination, harassment and indirect discrimination.
The Employment Tribunal (ET) dismissed Dr Mackereth's claims and ruled that his beliefs did not meet the Grainger criteria, with all failing the final limb.
By way of a reminder, the final limb of the criteria provides that a belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others, in order to be protected under the Equality Act (EqA) 2010 framework.
Dr Mackereth appealed the decision.
Was Dr Mackareth a Victim of Discrimination or Harassment for His Belief?
The Employment Appeal Tribunal (EAT) in Forstater had explored in detail some of the matters before the EAT in this case. The EAT in Forstater held that for a belief to be protected by the EqA 2010, it need only:
- satisfy a very modest threshold requirement
- must not have the effect of destroying the rights of others
In respect of the second limb, it is not enough that the belief may offend, shock or disturb a person. In considering whether the belief qualifies for protection, it is not necessary for a tribunal to consider what a person then does pursuant to that belief (ie how it is manifested).
The EAT in this case, following Forstater, held that ET had erred in applying too high a threshold to the belief in finding that it was excluded from protection as it was likely to cause offence. The EAT found that Dr Mackereth's belief that a person cannot change sex or gender and his lack of belief in transgenderism were both protected by the EqA 2010. The ET had also erred in finding that the failure to use preferred pronouns automatically constitutes unlawful discrimination or harassment under the EqA 2010, as this will always be a fact specific question. In applying the Grainger criteria, a tribunal must consider whether the belief is worthy of respect in a democratic society as a whole, not in the particular context of that person's workplace, therefore the ET also erred in this respect.
Notwithstanding these findings, the EAT agreed that Dr Mackereth had not suffered from discrimination or harassment and the appeal was dismissed on that basis.
What Can Employers Learn from This Decision?
This is a useful case for employers following the widely-reported Forstater decision last year. This case reaffirms that the threshold for protected beliefs under the EqA 2010 is low, in order to ensure that minority beliefs are protected, and the tribunal will not concern itself with how those beliefs are manifested at the point of determining whether or not it is protected. This decision also provides useful clarification that the final element of the Grainger criteria must not be considered in the specific context of a person's workplace.