Update - Doctor who refused to use transgender service users’ preferred pronouns not discriminated against

News  |   6 July 2022

Written by
Faye Shortall, Associate Solicitor

“Religion or belief” is a protected characteristic under the Equality Act 2010 (EqA).

The EqA provides that it is unlawful for an employer to discriminate directly and/or indirectly, and/or subject a job applicant or employee to harassment and/or victimise a job applicant or employee in relation to religion or belief.

“Religion” means any religion, including a lack of religion, and “belief” means any religious or philosophical belief, including a lack of belief.

In the recent case of Mackereth v Department for Work and Pensions and anor the nature of M’s role, as a health and disabilities assessor of benefits claims, required him to conduct face-to-face assessments and then prepare a report. When training for his role, M, a Christian doctor, stated that his beliefs meant that he would not agree to use the preferred pronouns of transgender service users, which would be in breach of the DWP’s policies. Whilst the DWP considered whether it could accommodate this, M did not have the required experience to not be in a non-customer-facing role. M left the DWP and pursued claims against under the EqA asserting that he asserted a biblical belief that people cannot change their sex/gender and that it would be irresponsible and dishonest for a health professional to accommodate or encourage this. He also asserted a lack of belief in “transgenderism”.

M’s claims were dismissed by the Employment Tribunal on the basis that his beliefs did not satisfy the criteria required, as determined by case law, for those beliefs to amount to a protected characteristic. This included the criteria that the belief must not conflict with the fundamental rights of others. In any event, the Tribunal did not agree that M had been treated less favourably or harassed and that the DWP’s requirement for assessors to use service users’ pronouns were a proportionate means of achieving a legitimate aim i.e. to ensure that service users were treated in accordance with their rights under the EqA.

M appealed and the Employment Appeal Tribunal (EAT) held that the Tribunal had made several errors. It held that the fact that M’s beliefs were “likely to cause offence” did not mean that they should not be protected. With regard to M’s lack of belief in “transgenderism”, the EAT found that it was clear from case law that lack of belief is protected under the EqA. The EAT did not, however, find that it would have been irresponsible for M to encourage for M to accommodate or encourage “impersonation” of the opposite sex.

Despite the above, the EAT did not find that M had been discriminated against or harassed. Amongst other findings, the DWP had not decided to dismiss M when he chose to leave, and M’s beliefs were not the reason for DWP’s behaviour. M’s appeal was dismissed.

The EqA protects the rights of individuals and advances equality of opportunity for all, regardless of their beliefs (or lack of belief), as long as the tests set out in the EqA are met. This case makes clear that an employer must act fairly when implementing policies, and consider the aim sought, to mitigate the risk of any claim against it being successful.

Advice

If you require assistance or advice on the content of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.

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