Belief Discrimination

29 July 2022

Is it unlawful discrimination on the ground of belief to require a Christian doctor carrying out disability assessments to use service users’ preferred pronouns?
No, held the EAT in Mackereth v DWP & anor.

The Claimant was employed as a Health and Disabilities Assessor for the DWP. He was a practising Christian who held the belief that God created man and woman and that it was not possible to change this. As such he refused to use an individual’s pronoun of choice, or refer to them in their desired style or title instead using only their gender as defined at birth.

Also, if a patient was established as transgender during an assessment, he would stop the assessment and refer them to another physician, leading to delays in the service user being assessed and a significant risk of offence being caused to the individual involved.

The employer explored ways to accommodate his objection but could not find any, as such the Claimant was told that should he refuse to change his position on this matter, his services would be treated as having been withdrawn. The Claimant left his job and brought Employment Tribunal proceedings alleging direct and indirect discrimination, and harassment relating to his respective beliefs and lack of beliefs.

The Employment Tribunal rejected his complaints.

The EAT also rejected the Claimant’s appeal. Whilst the decision of the Employment Tribunal was correct on the facts, the EAT found that the Tribunal had erred in law by deciding that the Claimant’s beliefs were not worthy of respect in a democratic society. The Claimant’s lack of belief in transgenderism is protected under the Equality Act.
The claims of direct discrimination and harassment failed as the employer had sought to accommodate the Claimant before taking steps against him. The indirect discrimination claim requiring the Claimant to use service users’ pronouns were proportionate and necessary to ensure transgender service users were treated with respect and without discrimination, and so this claim also failed.

In Conclusion.

This case reminds employers that even where a belief is genuinely held and is part of a wider recognised belief, the way those beliefs are manifested by the individual holding them can still be problematic. As such, employers may be called upon to carefully balance clashing but genuine beliefs in order to maintain the dignity of their employees.

Employers faced with this difficulty must act proportionally, with sensitivity, and seek to work with individuals in order to try to find a route that minimises offence and unequal treatment.

Please note that this advice is general in nature. As a MILS member you have access to the MILS Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.