Employment Tribunal finds that doctor was not unfairly dismissed after he refused to use transgender pronouns (Mackereth v (1) The Department for Work and Pensions (2) Advanced Personnel Management Group (UK) Ltd – ET/1304602/2018)
In the case of Mackereth v (1) The Department for Work and Pensions (2) Advanced Personnel Management Group (UK) Ltd (ET/1304602/2018) an Employee’s discrimination claim’s failed in the Employment Tribunal when it held the right to manifest a religion or belief is subject to the protection of the rights and freedoms of others.
The factual background in Mackereth v The Department for Work and Pensions & anor
Dr Mackereth (the ‘Claimant’) was a Christian. The Claimant was recruited by Advanced Personnel Management Group (the ‘Second Respondent’) on 29 May 2018 to act as a Health and Disabilities Assessor for the Department for Work and Pensions (the ‘First Respondent’). He was contracted to assess individuals on behalf of the First Respondent who were contemplating, undergoing or had undergone gender reassignment.
As part of his religious beliefs the Claimant did not believe that a person could change their gender at will. He believed in the truth of the bible and, in particular, the truth of Genesis 1:27: ‘male and female He created them’. He did not believe that “impersonating” the opposite sex could be beneficial to an individual’s welfare, or that society should accommodate and/or encourage anyone’s impersonation of the opposite sex.
As a result, he refused to refer to a client using the pronoun of their choice as required by the Second Respondent. It was explained to him that this was a breach of the Second Respondent’s policy and would mean that he could not undertake customer-facing work, which was fundamental to his role. The Claimant confirmed again that he would not be willing or able to comply with the Second Respondent’s policy and was consequently suspended and ultimately sacked.
He brought various claims of discrimination on the grounds of religion or belief in the Employment Tribunal.
The decision of the Employment Tribunal (ET)
There was no dispute in the ET that Christianity was a protected characteristic. However, the Claimant attempted to argue that his beliefs were also protected as religious and/or philosophical beliefs under The Equality Act. He argued that the pressure placed on him to renounce his belief, his suspension from work and summary dismissal were acts of harassment and less favourable treatment.
The Respondent’s argued that his particular beliefs in transgenderism were incompatible with human dignity and were in conflict with the fundamental human rights of transgender individuals and as a result were not protected as religious or philosophical beliefs under discrimination legislation.
The ET accepted that the Claimant did genuinely hold the religious beliefs he asserted (belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism) and that his right to hold those beliefs was protected. However, the right to manifest a religion or belief is subject to the protection of the rights and freedoms of others and the manner in which he chose to manifest those beliefs (refusing to refer to a transgender person by their chosen pronouns, titles or styles) would constitute unlawful discrimination or harassment under the Equality Act 2010.
The Claimant’s lack of belief that ‘impersonating the opposite sex’ might be beneficial for an individual’s welfare and/or that society should accommodate and/or encourage it, did not reach the necessary threshold for protection under employment law.
The ET also held that any person who refused to follow the policy would have been treated in the same way as Dr Mackereth. Therefore, the treatment was not because of his beliefs and there was no less favourable treatment on religious grounds and no discrimination. With regards to the Claimant’s claim of indirect discrimination, the ET held that even if the Second Respondent applied a provision, criteria or practice (‘PCP’) that put people with the Claimant’s beliefs at a disadvantage, the treatment would have been justified as a proportionate means of meeting the aim of promoting equality of opportunity.
Consequently, all of Dr Mackereth’s discrimination claims failed.
Our solicitors’ views on the case of Mr Mackereth v The Department for Work and Pensions & anor
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: ‘This case demonstrates the balancing act the Courts are required to do with regards to employee’ s rights to manifest their religion or belief whilst at the same time trying to protect the dignity of others.’
The decision of the Employment Tribunal in Mr Mackereth v (1) The Department for Work and Pensions (2) Advanced Personnel Management Group (UK) Ltd (ET/1304602/2018) can be found here.