Thoughtful implementation of preferred gender policy was not discriminatory

Last week, at a client seminar during a discussion of “clash of rights” issues, a client asked us a very good question. What is the legal position if an employee who has a protected “gender critical” philosophical belief refuses to refer to a person with the protected characteristic of gender reassignment with their preferred pronoun?

The next day, an Employment Appeal Tribunal judgment came out, which looked at this very issue and has given us some useful pointers about how these situations are best resolved.

The EAT has confirmed that the DWP did not discriminate against a Christian doctor by requiring him to address and refer to its service users using their preferred titles and pronouns. However, it disagreed with the tribunal’s conclusion that Dr Mackereth’s “gender critical” beliefs were not worthy of respect in a democratic society, and therefore did not quality for protection under the Equality Act.

The employment tribunal dismissed Dr Mackereth’s claim in 2019, well before the EAT’s important ruling last year in the case of Maya Forstater, when it delivered some important new guidance to help tribunals decide which beliefs should qualify for protection. The key message was that the “bar should not be set too high” when assessing whether a particular belief fell within the relevant Equality Act definition. It was not surprising that the EAT has reversed the tribunal’s decision on this point, since it did not have the benefit of this important new guidance when making its ruling.

It follows that the latest decision from the EAT is mainly about whether the DWP had indirectly discriminated against Dr Mackereth when implementing its preferred gender policy. In order to understand its conclusion, we need to explore the factual findings in a little more detail:

• Dr Mackereth, a medical doctor, had been engaged by the DWP to work as a health and disabilities assessor. He was to carry out medical assessments to establish entitlement to disability related benefits. It was likely that he would come across a few transgender service users each year.
• During his induction training, it emerged that his religious beliefs clashed with the DWP’s policy to refer to service users by their preferred titles and pronouns. He made it clear from the outset that he couldn’t commit to do this, because of his belief in the infallibility of the Bible, in particular certain passages in Genesis and Deuteronomy which he interpreted as being inconsistent with “gender fluidity”.
• It was accepted by both parties that due to his limited experience in the role, he couldn’t be re-deployed to a back-office role that would have avoided any contact with service users. The employer’s evidence demonstrated the importance of a policy of ensuring that transgender service users – who tended to be particularly vulnerable - were addressed as they wished. The tribunal also accepted that there was no practicable way of adopting a triage system to avoid Dr Mackereth coming into contact with transgender service users when he was undertaking benefit assessments.
• After a fact-finding meeting with Dr Mackereth to ensure his position was fully understood, followed by further investigations and an exchange of e-mails, during which he was given the opportunity to reconsider his position, his engagement ended after less than a month in post.

The EAT upheld the tribunal’s finding that in these circumstances, implementing the preferred gender policy was not indirectly discriminatory. Although it put someone with beliefs like those of Dr Mackereth at a particular disadvantage, the DWP had shown that applying the policy was a “proportionate means of achieving a legitimate aim”. In other words, although the policy was prima facie indirectly discriminatory, the employer’s justification defence was made out.

It's the job of the employment tribunal to make assessments of this nature, which are often finely balanced. So it can be hard to predict the outcome of future cases, because the precise circumstances will always differ. However, there are five features of this case which help explain why the DWP’s justification defence was successful:

1. The DWP had a clear policy on how transgender service users should be treated
2. It could evidence why the policy had been adopted
3. Other staff were not hostile to Dr Mackereth because of his beliefs, and they took time to listen to him
4. Dr Mackereth was given time to reflect on his position
5. The DWP appears to have been willing to explore alternative solutions to avoid a “clash of rights”, though in the end none proved to be workable.