Member Article

An increasing number of cases highlighting potential clashes between employees holding gender critical beliefs and the rights of other employees protected by the Equality Act 2010, leave employers having to carefully perform a balancing act of rights.

Whilst this is a developing area of law, the 3 recent cases discussed below demonstrate the importance of how beliefs are actually manifested and, in particular, the need for employers to carefully investigate issues and to draw a distinction between the beliefs someone holds and the actual manifestation of those beliefs in the workplace.

Careful investigation

The case of Mackereth v (1) The Department for Work and Pensions (2) Advanced Personnel Management Group (UK) Ltd demonstrates the importance of investigating issues before reaching decisions, particularly where there are clashes between different protected groups within the workplace.

Dr Mackereth was recruited by Advanced Personnel Management Group to act as a Health and Disabilities Assessor for the Department for Work and Pensions (DWP). His job was to assess individuals who were contemplating, undergoing, or had undergone gender reassignment, and during his induction, he was told that, as per DWP policy, he would be expected to refer to clients using their preferred pronouns.

Due to Dr Mackereth being a Christian, he does not believe in “Transgenderism” or “gender fluidity”, instead believing that a person cannot change their sex or gender and that it would be irresponsible and dishonest for a health professional to accommodate a patient’s “impersonation” of the opposite sex. As a result, he refused to call clients by the pronouns of their choice.

It was explained to Dr Mackereth that this would be in breach of DWPs policies, but he confirmed he would not be willing to comply. The Respondents’ started an investigation process as part of which they sought to find Dr Mackereth other suitable positions, like non-customer-facing roles. However, before that process was concluded, Dr Mackereth decided to leave his employment and brought claims for direct discrimination, harassment and indirect discrimination, relying on the protected characteristics of religion and belief.

ET Decision

The Tribunal dismissed the claims. Whilst there was no dispute that Christianity was a protected characteristic, the Employment Tribunal found that Dr Mackereth’s particulars beliefs did not satisfy the Grainger criteria (detailed in this earlier article - Balancing transgender rights with gender-critical philosophical beliefs in the workplace (shoosmiths.co.uk)), on the basis that the manifestation of a religion or belief is subject to the protection of the rights and freedoms of others, and Dr Mackereth’s refusal to use an individual’s chosen pronouns was contrary to those rights and freedoms.

In any event, the Tribunal also recognised that any employee who refused to use an individual’s preferred pronouns would have been treated in the same way and the treatment would be a proportionate means of meeting the aim of promoting equal opportunities and therefore justified.

Appeal Decision

Dr Mackereth’s appeal was unsuccessful, abeit that the Employment Appeal Tribunal (EAT) took a slightly different approach. The EAT concluded that Dr Mackereth’s beliefs did in fact meet the Grainger test. To qualify for protection, it is only necessary to establish that the belief “does not have the effect of destroying the rights of others”. Whilst Dr Mackereth’s beliefs had the potential to cause offence, it did not automatically bar them from protection.

However, the EAT found that Dr Mackereth did not suffer any acts of less favourable treatment or harassment for his beliefs. He had not been suspended or dismissed when he brought his claims because the Respondents had not yet concluded their investigation or attempts at accommodating his beliefs.

This case demonstrates the importance of avoiding knee-jerk reactions where such clashes between protected characteristics take place.

Manifestation of beliefs

Part of any investigation process will be the need to distinguish between the beliefs held by an employee and the way in which those beliefs are manifested.

For example, the case of Higgs v Farmor’s School is currently waiting to be heard by the EAT. Ms Higgs was employed by Farmor’s School as a pastoral administrator but was dismissed after the School received complaints about her Facebook posts which focused on her disapproval of the teachings of gender fluidity.

She filed claims for direct discrimination and harassment on the grounds of her protected beliefs, but they were dismissed by the Tribunal. Whilst it was accepted that her beliefs were protected, it was concluded that such beliefs were not the reason for her treatment. Rather, she was dismissed because the school felt that someone reading Ms Higgs posts might conclude that she is hostile to the LGBTQ+ community. Ms Higgs has appealed so it remains to be seen whether the EAT will take the same approach as the Tribunal.

By contrast, in Waters v Active Learning Trust, it was found that a school had indirectly discriminated against a caretaker for giving him a final written warning after he tweeted that Christians “should not support or attend” Pride festivals, stating how such events “encourage activities contrary to the Christian faith and morals”.

This case differed from Higgs in that Mr Waters made those comments outside of work as part of his role and duties as a Christian minister. It was held that the schools’ actions were not proportionate in such a context, and that they could have used lesser options prior to a final written warning, like issuing a statement that Mr Waters was entitled to those views, but that they were not the views held by the school.

Conclusion

The above three cases highlight the complexities and sensitivities of this developing area of law and the need for employers to not only draw a distinction between the beliefs someone holds and the actual manifestation of those beliefs in the workplace, but also strike a balance to protect the dignity of others. Going forwards where such clashes arise, employers should carefully examine how exactly a belief presents itself, and in what context. Employers should also consider the impact that such complexities are likely to have on training and diversity and inclusions policies (especially social media policies), as well as grievance and disciplinary processes.

 

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