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28th October 2019

Tribunal Tale – Mackereth v The Department for Work and Pensions and others

Background

Of the nine protected characteristics in the Equality Act 2010, perhaps gender reassignment remains the one that employers have the least knowledge of. We all know that we can’t refuse to hire a pregnant candidate, use a racial slur against a colleague or dismiss someone because they are gay.

However, with the transgender (trans) rights movement being in its comparative infancy, less might be known about how trans individuals are protected in law. At a basic level, someone who proposes to undergo, is undergoing or has undergone gender reassignment is protected from less favourable treatment.

One issue that appears to cause difficulty for some is which pronouns to use when communicating with or about a trans person. Some individuals will want to be referred to as ‘him’ or ‘her’ (etc.) depending on the gender that they identify with. Others may prefer more gender-neutral pronouns such as ‘they’, particularly individuals who identify as non-binary.

Often any confusion in that area can be resolved as it will be clear which pronouns are preferred. What may be more problematic is where cisgender (non-trans) or other individuals refuse to use a trans person’s chosen pronouns, particularly if they disagree with trans rights for religious reasons.

An employer in such circumstances may face a clash between protections linked to religion and protections for trans individuals, as was the experience of the Department for Work and Pensions (DWP) in this case.

The facts of the case

Mackereth is a qualified doctor, who previously worked for the Christian ministry and still undertakes evangelistic work, primarily in Scotland. He began working for the DWP on 29 May 2018, in a role where he would be asked to assess individuals in relation to disability benefits.

The DWP has a policy in place requiring trans individual to be referred to by their chosen pronoun. During his induction process, Mackereth stated that he would not to do so as he stated that as a Christian he does not believe in what he called ‘transgenderism’, which he also referred to in the Employment Tribunal (ET) as a ‘delusional belief’.

In June 2018 the DWP met with him to ask him to confirm whether he would use someone’s chosen pronoun if it did not match the one generally associated with the gender on their birth certificate. Mackereth restated his stance that he would not.

The DWP explained that this would mean that he could not undertake customer-facing work, which was a required (if not primary) element of his role. It followed this up in writing, and offered Mackereth additional training and support in that area. The letter also stated that the DWP would terminate his employment if he did not comply with the DWP’s policy on trans pronouns.

Mackereth still refused, and was subsequently dismissed. He then brought a number of claims on the grounds of religion and belief.

The ET’s decision

The ET dismissed all of Mackereth’s claims. Perhaps most interestingly, the ET considered the law on religion and belief, and in particular the rules on how a belief can become protected under the Equality Act.

In this case, the ET restated that in order to be protected, a belief must (among other criteria) relate to a weighty and substantial aspect of human life and behaviour or attain a certain level of cogency, and not be incompatible with human dignity.

 The ET went on to say that Mackereth’s assertion that gender reassignment is a delusional belief based on ‘impersonation’ of the opposite sex meant that his beliefs do not relate to a weighty and substantial aspect of human life and behaviour or attain a certain level of cogency. The ET also decided that his beliefs were incompatible with the human dignity of trans people. On that point, his beliefs did not meet the criteria for protection in the law.

Having made that decision, the ET did not technically need to give detailed responses to his claims of indirect discrimination as they could not proceed based on an unprotected belief. However, the ET chose to do so regardless.

In relation to direct discrimination, the ET stated that the DWP would have treated a non-religious person in the same way, and as such there was no less favourable treatment on religious grounds.

On the claim of indirect discrimination, the ET said that even if there had been a DWP policy or practice that put people with Mackereth’s beliefs at a disadvantage, that treatment would have been justified as a proportionate means of meeting the DWP’s aim to promote equality of opportunity. As such, that head of claim would also have been unsuccessful.

On the harassment issue, the ET noted that management in DWP had acted politely and professionally towards him at all times, and their questioning on how he would communicate with trans persons could not be said to have created a hostile or intimidating environment. That claim also failed accordingly.

What does this mean?

This case follows similar reasoning to those in previous cases where religion has clashed with other protected characteristics, namely that a person has a right to be religious and hold beliefs, but does not have carte blanche to manifest them in ways that could be harmful to others.

In particular, the courts have been slow to protect such manifestations when the employees in question are in roles that provide a service to the public. For example, a registrar was not allowed to demand that she not officiate at same-sex marriages, and a relationship counsellor could not request that he not support same-sex couples.

Of course, where two characteristics clash, there will be a need for balance, and it is too simplistic to state that religion will always be trumped by other protected characteristics. Much will depend on the facts of each case and what options for, if any, are available to employers to accommodate religious beliefs.

If any point can be taken from this case, it’s recognition that trans individuals have the right to choose particular pronouns that they identify with, and that that choice should be respected in the workplace.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

28th October 2019