In Mackereth v The Department for Work and Pensions v Advanced Personnel Management Group (UK) Ltd Dr Mackereth was a doctor who was appointed to work as a health and disabilities assessor for the DWP. He was a Christian who did not believe that people can change sex (based on Genesis) and didn't believe in ‘transgenderism’.
The DWP's policy required its staff to refer to their patients by their preferred name, title and pronouns. During his induction, Mackereth made it clear that he would refer to trans people by their preferred name but would not adopt pronouns that were inconsistent with their sex at birth.
The DWP looked into how it could accommodate his beliefs. It considered moving him to a non-customer facing role or ensuring that he didn't assess transgender service users. It rejected the first option because he didn't have the relevant experience, and the second because the service operated a 'first come, first served' system and didn't always know, in advance, whether someone was transgender.
Mackereth's manager met him to discuss the issue and to find out more about his beliefs. However, the doctor became upset. The following day he went home and claimed he'd been suspended. The DWP asked him to confirm if would follow the agreed processes but he said he couldn’t and effectively resigned.
He alleged that he had been subjected to direct and indirect discrimination and harassment because of his religious beliefs and/or lack of beliefs. The tribunal found that a belief in Christianity was protected but that Mackereth's specific beliefs (which were more narrowly defined) and how he manifested them were not. He appealed.
The EAT, relying heavily on the Forstater judgment, confirmed that Mackereth's specific belief was protected, as was his lack of belief in gender ideology. But it said the tribunal had been correct to dismiss his claims. There was no direct discrimination. He had not been 'interrogated' about his beliefs or pressured to renounce them, nor had he been suspended or dismissed because of them. He also hadn't been harassed. The DWP’s approach towards him had been a response to the way in which he had said he would manifest his beliefs, which was contrary to the way it wanted to treat service users.
The tribunal had not erred in rejecting his indirect discrimination claim either. The tribunal had found that the DWP had legitimate aims in ensuring that service users were treated with respect and did not suffer discrimination. Its policy was a necessary and proportionate means of achieving those aims, particularly given the vulnerability of trans users.
This is not the first time the courts have had to consider how the Equality Act applies in circumstances where an employee's beliefs clash with a basic aspect of their job. In Ladele v London Borough of Islington, a Christian registrar refused to conduct same-sex civil partnerships and was disciplined. The Court of Appeal held that the employer had a legitimate aim of promoting ‘dignity for all’ and asking all staff to comply with its policy was proportionate. Similarly, in McFarlane v Relate, a Christian counsellor was dismissed for refusing to counsel gay people. The EAT found the requirement to serve the community in a non-discriminatory manner was a legitimate aim and asking all staff to comply with it was justified.
Generally, if there is a less discriminatory way for an employer to achieve a legitimate aim, they are expected to take it. One wonders if the outcome for Mackereth might have been different if he'd engaged with his managers about how the service could accommodate his beliefs without prejudicing the duties it owed to its service users.
Unlike Ladele and McFarlene, Mackereth hadn't asked to be excused from assessing a certain group of people (in this case trans people) – he had just said that he wouldn't use their preferred pronouns. While that would be an issue if he adopted a trans person's sex pronouns when communicating about them, in a one-to-one context he could have referred to each person by their name and avoided using third-person singular pronouns altogether. That approach wasn't explored. But it's possible that the DWP would have gone along with it.
These cases don’t mean you can insist that your employees use the preferred pronouns of all the people they come into contact with. There's clearly a distinction between people whose personal beliefs mean they can't or won't perform all of their duties, and those whose beliefs don't have any impact on their work. Nor should you force staff to declare their preferred pronouns. Pronouns are not neutral. The move towards declaring one's pronouns is based on the belief that everyone has an inner gender identity. Many people don't accept this, and we know from the EAT's decisions in Forstater and Bailey that people with gender-critical beliefs are equally protected under the Equality Act.
Glenn Hayes is head of employment law at Irwin Mitchell