The importance of taking proportional and reasonable steps to address any inequality in the workplace
14th October, 2019
In Dr Mackereth v (1) The Department for Work and Pensions and (2) Advanced Personnel Management Group (UK) Ltd, the Employment Tribunal held that, whilst Christianity itself attracted protection under the Equality Act 2010, the refusal to refer to transgender individuals by the relevant pronouns, titles and styles amounted to unlawful discrimination or harassment toward the transgender individual, irrespective of religious beliefs.
As a result, Dr Mackereth’s discrimination claims could not meet the ‘Grainger’ test which states that a philosophical belief must, to be protected, (among other factors) “not conflict with the fundamental rights of others”. Therefore, Dr Mackereth’s claims could not succeed.
Dr Mackereth was recruited by Advanced Personnel Management Group (UK) Ltd (APMG), as a Health and Disabilities Assessor (HDA) for the Department for Work and Pensions (DWP). APMG is an employment services provider, which recruits and co-ordinates healthcare professionals for the DWP.
As part of his role, Dr Mackereth would assess service users who were seeking benefits in order to assess their health. It was accepted by all parties that transgender people generally see a higher instance of mental health concerns than the general population and so it was common for transgender people to require the services of a HDA. Those with mental health conditions were deemed vulnerable users and, as a result, were not required to complete an on-line information form prior to their appointment. As a result, the HDA’s would not be aware that a service user was transgender until this initial consultation.
The DWP’s policy is that employees should use the service user’s presented sex and address them using their preferred name; this extends to preferred pronouns, style or title. This was the provision, criterion or practice relied upon by Dr Mackereth and he was provided with training on this issue.
Dr Mackereth is a devout Christian. He believes in the supremacy of the Bible as God’s word and, in particular, followed Genesis 1:27 which states that “So God created man in His own image; in the image of God He created him; male and female He created them”. He felt that a person couldn’t change their sex/gender at will and that an attempt to do so was “pointless, self-destructive and sinful”. Further, that society should not accommodate and/or encourage anyone’s “impersonation” of the opposite sex and highlighted that it would not be beneficial for an individual’s welfare.
As a result, he believed that it would be irresponsible and dishonest to accommodate or encourage a service user’s “impersonation” of the opposite sex and refused to refer to the service users he assessed using the pronoun of their choice.
The facts surrounding Dr Mackereth’s departure were disputed. It was accepted that a conversation took place between Dr Mackereth and his line manager, and that he left work soon after. However, there was a dispute as to whether this constituted a suspension. The Employment Tribunal held that it did not, as the decision to leave was Dr Mackereth’s alone. Dr Mackereth was later held to have resigned by the Employment Tribunal (despite claiming he was dismissed).
Dr Mackereth brought an Employment Tribunal claim on the basis of harassment, direct and indirect discrimination. He pleaded that the acts of harassment were (1) the pressure put on him to renounce his beliefs, (2) his alleged suspension from work on 13 June 2018 and (3) his alleged summary dismissal.
Dr Mackereth’s claim was dismissed in full. Both the DWP and APMG accepted that Christianity is a protected characteristic under the Equality Act, but rejected the argument that his assertions amounted to the same; they felt that his beliefs showed “an intolerance towards transgender people, and that a refusal to respect the dignity of transgender people and their preferred form of address is incompatible with human dignity and conflicts with the fundamental rights of others”. There was a distinction drawn between the religion (the protected characteristic) and the belief held, potentially as a result of that.
The DWP did consider alternatives to allow Dr Mackereth to remain in his role, which included a non-client facing role or giving Dr Mackereth non-transgender service users to assess; however, these were not workable. The DWP’s policy was only to permit non-client facing roles once a HDA had 12 months’ experience, which Dr Mackereth did not, and it was decided that there were no workable ways to avoid Dr Mackereth assessing transgender service users.
The Employment Tribunal held that, whilst Christianity attracted protection and his beliefs were genuinely held, the circumstances were not sufficient to amount to discrimination, as Dr Mackereth was not treated less favourably as a result of his religion. The Employment Tribunal concluded that any other person refusing to assess transgender people, who did not hold those beliefs, would have been treated in the same way, to ensure that service users were treated in the manner of their choosing; this was proportional and for a legitimate aim.
The refusal to refer to transgender individuals by the relevant pronouns, titles and styles amounted to unlawful discrimination or harassment. As a result, Dr Mackereth’s belief against transgenderism did not meet the requirements to be a protected belief under the Equality Act.
The Employment Tribunal noted that this case was not determined by whether Dr Mackereth was a Christian and whether that was a protected characteristic. Instead, the Employment Tribunal noted “[w]hat this case concerned is whether he was entitled to manifest those beliefs in the circumstances that applied here. He accepted that his beliefs meant that insofar as a service user was a transgender individual within the meaning of the Equality Act, that whilst he did not wish them to, his actions would cause offence and potentially breach the Equality Act”.
This case highlights the difficulties experienced when trying to balance the rights of different parties and shows that employers must take proportional and reasonable steps to address any inequality in the workplace. It is not sufficient to simply ignore someone’s beliefs that are not compatible with an employer’s (or the general public’s) and employers should turn their minds to whether there are ways to deal with these. However, if such beliefs are, as was the case here, incompatible with human dignity or conflicting with the fundamental rights of others, they will not attract protection under the Equality Act.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.