Is it unlawful discrimination on the ground of belief to require a Christian doctor carrying out disability assessments to use service users’ preferred pronouns?
No, held the EAT in Mackereth v DWP & anor.
The Claimant, a Christian doctor, was required to refer to transgender service users by their preferred pronouns. He objected at induction, citing his particular Christian beliefs and his lack of belief in ‘transgenderism’. The employer explored ways to accommodate his objection, finding none; the Claimant left his job and brought tribunal proceedings alleging direct and indirect discrimination, and harassment relating to his respective beliefs and lack of beliefs. The tribunal rejected his complaints.
The EAT also rejected the Claimant's appeal, but held that the tribunal had been wrong to hold that aspects of the Claimant’s beliefs were not within the scope of the Grainger criteria, drawing on the recent EAT case of Forstater as worthy of respect in a democratic society, not in conflict with the rights of others or incompatible with human dignity, but nonetheless the decision was correct on the facts. The tribunal had failed to engage with the Claimant’s case, that his lack of belief in transgenderism is protected under the Equality Act, regardless of Grainger, and noted that whether a belief meets the Grainger criteria cannot depend on the context of the particular employment (para 116).
The claims of direct discrimination and harassment failed on the facts; the employer had sought to accommodate the Claimant and clarify his position before taking steps against him. The indirect discrimination claim related to ‘PCPs’ of requiring the Claimant to use service users’ pronouns, and confirm his willingness to do so, the DWP’s aims were: ensuring transgender service users were treated with respect and without discrimination, and promoting equal opportunities. The tribunal had not erred in concluding that the measures were proportionate and necessary, that appeal failed.
The EAT noted that its function was to decide whether the tribunal had made an error of law, not to engage with the merits of any debate arising from the case.
Thanks to Ed McFarlane for preparing this case summary.