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Work Matters: ‘Gender-critical’ beliefs are protected but must be balanced against the rights of others

Mackereth v (1) DWP (2) Advanced Personnel Management Group (UK)

The EAT in Mackereth v (1) DWP (2) Advanced Personnel Management Group (UK) has confirmed that gender critical beliefs (that a person cannot change their sex/gender at will) are protected under the Equality Act 2010. However, employers are entitled to take steps to prevent employees from expressing or demonstrating their beliefs in ways which have an inappropriate impact on others. In this case, the employer was found not to have discriminated against its employee (who was a disabilities assessor of benefits claimants) by requiring him to refer to claimants using their preferred pronouns. This policy was necessary and proportionate) to protect potentially vulnerable transgender service users.

Legal background

To qualify for protection from discrimination and harassment under the Equality Act 2010, an employee must show that the discrimination or harassment relates to a ‘protected characteristic’. This protection extends to religion or belief, including any religious or philosophical belief, which is such a protected characteristic.

A reference to belief includes a reference to a lack of belief.

In its 2010 decision in Grainger plc v Nicholson the EAT said that for a philosophical belief to be protected it must:

  1. be genuinely held;
  2. not simply be an opinion or viewpoint based on the present state of information available;
  3. concern a weighty and substantial aspect of human life and behaviour;
  4. attain a certain level of cogency, seriousness, cohesion and importance; and
  5. be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.

In the case of Forstater v CGD Europe (which we covered in our June 2021 Work Matters) the EAT found that ‘gender critical views’ (that biological sex is immutable and therefore cannot be changed) can be protected as a philosophical belief. The EAT focused in particular on the fifth principle of the Grainger test and said that this test must not be set at too high a threshold. A belief would only be regarded as not worthy of respect if it would be an affront to the European Convention of Human Rights principles ‘akin to that of … advocating Nazism’.

While the EAT considered that Ms Forstater's belief may have been considered offensive and abhorrent to some, it was not a belief that was an affront to ECHR rights. It did not seek to destroy the rights of transgender people and it was worthy of respect in a democratic society.

Facts

The employee in this case, Dr Mackereth, is a doctor and a Christian, who believes that God creates people as men or women and that the Bible prohibits transgenderism. Dr Mackereth asserts that his belief prevents him from using pronouns which are inconsistent with the gender designated to someone at birth.

Dr Mackereth started work with the Department for Work and Pensions (DWP) as a health and disabilities assessor of benefits claimants. The assessments were required to be carried out face-to-face. During the induction process Dr Mackereth stated that his beliefs meant he could not agree to use the preferred pronouns of transgender service users. However, this was at odds with the DWP’s policy which said that ‘A transgender customer … should be treated with respect and referred to in their presented gender at all times’.

The DWP took steps to clarify Dr Mackereth’s beliefs and to see if it could accommodate them. However, it could not find a way in which to do so. In particular:

  • he could not be offered a non-claimant facing role because this required 12 months’ experience; and
  • it was not possible to avoid Dr Mackereth assessing transgender users. Some users would arrive at appointments without anything being known about them in advance. If they identified as transgender at this stage it was too late to pass them to another assessor without risk of damage to their mental health.

Dr Mackereth subsequently left the DWP’s employment - with his view being that he had been dismissed. He also said that he had been ‘hauled out of a meeting’; ‘interrogated’ and pressurised to renounce his beliefs. DWP said they did none of those things.

Dr Mackereth brought claims in the Employment Tribunal (ET) for direct and indirect discrimination and harassment, relying on the protected characteristic of religion or belief (including a lack of belief in transgenderism).

ET decision

The ET hearing took place before the EAT made its decision in Forstater and so the ET was not bound to follow the EAT’s reasoning in that case.

The ET dismissed Dr Mackereth’s claims. Although his Christian belief was protected by the Equality Act, his beliefs (or lack of belief) in relation to transgenderism were not protected by the Equality Act as not all Christians renounced transgenderism (and so his Christian beliefs were distinct beliefs) and those beliefs were not protected in their own right. In particular, the ET held that his beliefs did not satisfy the fifth Grainger principle - they were not worthy of respect in a democratic society and conflicted with the fundamental rights of others (i.e. transgender people).

The ET went on to say that even if it had got it wrong and Dr Mackereth’s beliefs were protected, he had not been harassed or discriminated against in relation to those beliefs.

In particular, the ET did not find Dr Mackereth’s version of events in respect of the direct discrimination and harassment claims to be credible. Instead, the ET considered that the DWP had merely required Dr Mackereth to clarify his position and it had not made any decision to dismiss him at the time he decided to leave. Also, the ET held that although the DWP’s policy on pronouns was indirectly discriminatory, it was justified.

Dr Mackereth appealed to the EAT.

EAT decision

By the time the EAT considered the appeal, the Forstater decision had been published. It is therefore not surprising that, for the reasons set out below, the EAT held that Dr Mackereth’s beliefs relating to transgenderism were protected.

The EAT said that the ET had imposed too high a threshold when considering whether Dr Mackereth’s belief was worthy of respect in a democratic society (the fifth Grainger principle) and confirmed the EAT’s decision in Forstater that for a belief to be protected, it only needs to not destroy the rights of others.

The EAT also said that Dr Mackereth’s lack of belief in transgenderism was protected. The ET had been wrong to apply the Grainger test to this aspect as a lack of belief is protected regardless of whether it meets the Grainger test.

However, the EAT upheld the ET’s decision on discrimination. In this case it was possible and correct for the ET to separate Dr Mackereth’s protected beliefs from the action he wanted to take as a result, i.e. the way in which he manifested those beliefs.

  • Direct discrimination: the DWP’s treatment of Dr Mackereth in respect of his refusal to refer to people by their preferred pronouns was not less favourable on grounds of his belief. DWP would have treated another doctor who made the same refusal but who did not share Dr Mackereth’s belief in the same way.
  • Indirect discrimination: although the DWP’s policy that customers should be referred to in their presented gender was indirectly discriminatory, it was justified. It was a necessary and proportionate way to achieve the legitimate aim of meeting the needs of potentially vulnerable transgender service users and to ensure they were treated with respect and not discriminated against. In particular, non-compliance with the policy would put these users at high risk of an adverse effect on their mental health.
  • Harassment: the ET had been entitled to find that Dr Mackereth had not suffered the acts of harassment complained of on the basis that those alleged acts had not been made out.

Fladgate comment

Balancing how to treat employees with protected beliefs which are at odds with the protected characteristics of other staff or, as in this case, third parties, is a tricky tightrope for employers to walk. Employers should always act with caution when dealing with such beliefs - so as long as a belief meets the first four Grainger principles, it is likely to be protected even if it could be offensive to others. It is only the most extreme beliefs (such as Nazism) which will not be protected. Further, if an employee expresses their protected characteristic as a lack of belief, this will be protected irrespective of whether it passes any element of the Grainger test.

In respect of gender-critical beliefs, the EAT in Forstater and Mackereth have made it clear that they are protected. This means that employers should handle any situation relating to such beliefs very carefully.

Fortunately for the DWP in Mackereth, it did just that. To manage the conflict between Dr Mackereth’s gender-critical beliefs and its preferred pronouns policy, the DWP spent time speaking to Dr Mackereth about the nature of his beliefs and took care in assessing whether, and if so how, they could be accommodated. The DWP was not hostile towards Dr Mackereth or critical of his beliefs. If the ET and the EAT had found that DWP had acted differently, he may well have succeeded in his claims.

To avoid such claims and any resulting damage to reputation, employers should take a similarly careful approach and:

  • treat employees with dignity and respect, even if you do not agree with their viewpoint. Do not criticise their beliefs or single them out for less favourable treatment as a result of their beliefs;
  • avoid taking a side (or being perceived to take a side) in any conflict between one belief and another belief or other protected characteristic. For example, you can ask employees not to engage in debate about their beliefs in connection with their employment but make sure that you are even-handed and proportionate when doing so. Try not to make any assessment as to which belief is more important - even the courts steer away from doing this; and
  • review any policies which could impact a protected belief - such as a pronoun policy - with a critical eye. Risk assess whether the policy would likely be judged as a ‘proportionate means of achieving a legitimate aim’, capable of defending an indirectly discriminatory policy. In other words, only include restrictions on those with protected beliefs where there is a legitimate reason for doing so (for example, to ensure others are treated with respect) and check that the method of restriction is necessary and proportionate.

Unfortunately, the EAT’s decision in Mackereth is not authority that pronoun policies will always be justified. Whether they are will depend on the circumstances and facts of the case. For example, Dr Mackereth pursued an argument at the EAT that the DWP’s policy was disproportionate as it could have allowed the use of a service user’s preferred name, instead of pronouns. However, this point was not taken into account by the EAT because it had not been properly raised by Dr Mackereth at ET. If it had, the EAT’s decision on justification could have been different.

That said, this decision does confirm that employers are entitled to take steps to prevent employees from expressing or demonstrating their beliefs in ways which are inappropriate in their impact on the workplace. In other words, having a protected belief does not legitimise conduct which would otherwise count as discrimination or harassment. In particular, having a gender-critical belief does not mean that an employee can ‘misgender’ transgender people with impunity. Dignity and respect are key considerations.

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