August 12, 2022

Volume XII, Number 224

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EAT Reinforces Protection of Employee Beliefs in Biblical Pronouns Row (UK)

As a break from workplace investigations and before Covid’s threatened resurgence as an issue for employers, how about this new slice of “gay cake” case law around what should and should not happen when your religious beliefs clash with the requirements of your job?

In Mackereth –v- DWP & Another this week, the claimant was a man with both literally and metaphorically Old Testament beliefs, specifically around Genesis 1:27 and Deuteronomy 22:5, which he read as prohibiting transgenderism and cross-dressing respectively, and as imposing on him a personal duty not to encourage or facilitate the acceptance of gender “impersonation” (his word) in today’s society.  Mackereth chose to make his last stand on the request by his employer that he use pronouns (Mr, Mrs, etc.) which he saw as inconsistent with the gender at birth of the people he dealt with.  [For reasons unexplained, he had no such issue using the first names by which they preferred to be addressed, and so while unwilling to address a person born male as Miss, there seemed to be no difficulty with, for example, Vera.]

As a disability benefit health assessor, it was accepted that Mackereth might see only a handful of transgender applicants each year. However, it was the employer’s case that given the emotional and mental health burden often carried by transgender people seeking disability benefits, it was still appropriate to impose a requirement that the pronouns used by its staff should reflect applicants’ preferences.  It had in mind in particular the physiological damage which could be caused to an already vulnerable person by a medical practitioner’s refusal to recognise their gender choices.  Mackereth refused, even fully accepting that that refusal could offend or upset any transgender benefits claimants he assessed.  Alternative arrangements were canvassed, including his taking another role (too much training required) and his handing over transgender candidates to another assessor (potentially received by the candidate as a further poke in the eye by a hostile society in general). 

As a result, Mackereth’s employment ended, in his view, by his dismissal and in the employer’s by his resignation.  In the end, nothing much turned on this as his subsequent tribunal claim for religious discrimination and harassment related primarily to the employer’s conduct before that termination.  He had been “hauled out of a meeting” he said, “interrogated” about his views, suspended and “put under pressure to renounce his beliefs”. 

The ET therefore had three main issues to consider:

  • did Mackereth’s Old Testament beliefs around transgenderism qualify for protection under the Equality Act;

    • had the treatment alleged actually happened; and

    • if it had, was it because of his beliefs?

The Employment Appeal Tribunal looked at another recent transgender discrimination decision, Forstater and decided that the ET here had set too high a bar for parts of Mackereth’s claimed beliefs.  Provided that the beliefs (or lack of belief, as Mackereth had here in relation to transgenderism) satisfied the key components required by the Equality Act, it did not matter that it could well be offensive to some or indeed most other people.  That did not mean that it was not worthy of respect in a democratic society. 

So Mackereth was over the first fence and running nicely, but was then a faller at the next two.  As to whether the events here alleged had taken place, it was clear that the ET had not regarded Mackereth’s Christian principles as extending to telling the truth in his evidence. “He was a poor witness whose perception of events was skewed”, it said, and “save where supported by another witness or documentary evidence, his account should be given little weight”.  He was found not to have been hauled out of a meeting or suspended or interrogated or pressured to renounce his beliefs.  This made most of his claims non-starters from the off, this being a process Mackereth had started in his own evidence by the belated admission that everyone he had dealt with in relation to the issue had in fact treated him civilly and professionally at all times. 

In his last throw of the dice, Mackereth sought to make a harassment claim out of the questions which his employer had asked him about his beliefs.  He said that as they related to his views, were unwelcome and had upset him, he should get home on that at least.  The ET considered that the respondent had been doing no more than recommended by all available guidance, from Acas to the General Medical Council, i.e. trying to ascertain the parameters of Mackereth’s views and hence how they could perhaps be accommodated.  Indeed, he ultimately admitted that his employer had little other option but to talk to him about them.  In the circumstances, in a rare sortie for the much under-used section 26(4c) Equality Act, the Employment Tribunal decided that Mackereth had not in fact been upset at all, or that if he had, that was not reasonable. 

Lessons for employers:

  1. It is quite legitimate for you to ask an employee professing to beliefs which may be challenging to square with their duties or good workplace relationships how they think that can be done, but those questions should not extend to challenging the truth or wisdom of those beliefs.

  2. While you should be seen to consider how “difficult” beliefs can be accommodated in the workplace, you are not obliged to submit others (whether colleagues or customers or service-users) to any material detriment in order to do so.

  3. You should not let your own views on the employee’s stated beliefs affect the handling of the situation.  This case reinforces the principle that those beliefs and their manifestation must be not just weird or distasteful but actively dangerous (“torture or inhuman punishment” is given as an example) before they will cease to be protected. Look past the beliefs as far as you can and focus instead on the practical difficulties caused by the employee’s exhibiting them in the workplace.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 188
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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