The tension between certain religious beliefs and the requirement to respect and accommodate the rights of others is becoming a greater theme in the field of employment law. The latest case to examine this area is Mackereth v The Department for Work and Pensions and Advanced Personal Management Group (UK) Ltd [2022] EAT 99.
Dr Mackereth was a doctor who obtained a job as a health and disability assessor at an assessment centre in Birmingham. The role required him to assess claimants for disability-related benefits, and his duties would include conducting face-to-face assessments and preparing reports. A proportion of claimants would be applying for benefits based on mental health conditions; of those, a small proportion identified as transgender or suffered from gender dysphoria.
Dr Mackereth was a Christian who undertook evangelistic work in his spare time. He believed that every person had been created by God as either male or female and that they could not change their sex/gender at will.
He also did not believe in the concept of ‘gender fluidity and did not believe, as others did, that impersonating someone of the opposite sex might be beneficial for their welfare or that society should encourage or accommodate someone’s impersonation of the opposite sex. More specifically, he believed that it would be dishonest for a healthcare professional such as himself to accommodate or encourage a patient’s ‘impersonation’ of the opposite sex.
At Dr Mackereth’s induction course, the question of how to address someone who transgender was was discussed. It was explained that the policy was to refer to individuals by their preferred name and title.
Dr Mackereth noted that, as a Christian, he had no issue with using whatever first name the service user preferred but did object to using pronouns or titles that were inconsistent with the service user’s birth gender.
When questioned about this further, Dr Mackereth explained that he had not had to interact with transgender individuals in the past as his consultant had previously accommodated his beliefs and reduced his need to interact with transgender people. The employer, therefore, investigated whether such an accommodation was possible. It found that it was not, as service users might not present as transgender in advance of any assessment.
Further discussions were held with Dr Mackereth about his beliefs, and he confirmed that he would not be able to address someone using their chosen pronoun as requested, where that conflicted with their birth gender. The employer, therefore, suggested that he was unable to perform the role for which he had been employed, although Dr Mackereth considered that this was in essence a dismissal.
As a result, Dr Mackereth filed discrimination claims with the Employment Tribunal. They found that his Christian faith was a protected characteristic but went on to conclude that the beliefs he relied upon were not protected in law as they were incompatible with human dignity and conflicted with the fundamental rights of others.
He accepted that transgender individuals might find his beliefs offensive, although that was not his intention. However, they also went on to find that Dr Mackereth had not been discriminated against, nor had he been the victim of harassment.
The employer had focussed on his refusal to comply with its policy of addressing people by their chosen pronouns and would have treated anyone who refused the same way, regardless of whether this was due to religious views or not. His religious beliefs were not the reason for the way that he had been treated.
Dr Mackereth appealed to the Employment Appeal Tribunal (EAT). They accepted his argument that the ET had set the bar too high when assessing whether his beliefs were worthy of protection and found that some of his beliefs should be treated as protected characteristics. However, when assessing the substantive complaints that he made, they accepted the findings of the ET that his claims must fail on the facts.
Whilst Dr Mackereth did not ultimately succeed in his claim, it is important to note that several of his beliefs were ultimately found to be protected in law. The EAT pointed out that the fact that a belief was likely to offend did not mean it was automatically excluded from protection. The tension in this area is likely to continue.
Safia Tharoo Barrister, 40 Bedford Row, London
