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Religious belief and use of preferred pronouns

The use of preferred pronouns has been in the news over the last couple of weeks as Halifax started offering staff the ability to include preferred pronouns on their name badges. This created a Twitter storm, with the bank ultimately tweeting to say that customers who weren’t happy could close their accounts.

The Employment Appeal Tribunal (‘EAT’) has also had to consider the use of preferred pronouns, with a decision handed down on a case which considered whether a doctor could be required to use the preferred pronouns of transgender service users.

The EAT found that the Claimant held to the principles of the Great Reformation, including “a commitment to the supremacy of the Bible as the infallible, inerrant word of God.” As part of this, he believed that God created humans as male and female, leaving no scope for any other sex or gender. The EAT accepted that this belief was capable of protection under the Equality Act 2010 but did that mean he could refuse to refer to service users by their preferred pronouns?

Dr D Mackereth v The Department for Work and Pensions and Advanced Personnel Management Group (UK) Limited

The Claimant was dismissed from his role as a health and disability assessor after he refused to use transgender service users preferred pronouns, which the Claimant said was due to his religious beliefs. The Claimant’s beliefs were understood to be based on the Christian belief that individuals are born male or female and a person cannot change their gender.

The Claimant had explained this during his induction with the Respondent, making them aware that he would not agree to use the preferred pronouns of transgender service users; however, this conflicted with the Respondent’s policies. Attempts were made by the Respondent to clarify the Claimant’s position to understand if his beliefs could be accommodated but ultimately, the Claimant left his employment and brought claims to the Birmingham Employment Tribunal in 2019 for direct discrimination, harassment and indirect discrimination based on the protected characteristic of religion or belief.

The Claimant was unsuccessful with his claims, as the Employment Tribunal found that he had not suffered the acts of less favourable treatment or harassment complained of and that he had not suffered direct discrimination or harassment. In relation to the Claimant’s indirect discrimination claim, the provisions, criteria and practices applied, which were to use service users preferred pronouns and to confirm a willingness to adhere to that policy, it was held that these were a necessary and proportionate means of achieving the Respondents’ legitimate aims. These aims being, to ensure that transgender service users were treated with respect and in accordance with their rights under the Equality Act, and to provide a service that promoted equal opportunities. The Claimant subsequently appealed this decision.

Decision

The EAT upheld the decision made by the Birmingham Employment Tribunal.

The Claimant’s appeal cited the ruling in the appeal case of Forstater v CDG Europe and others in 2021, in which it was found that Ms Forstater was entitled to express the views that biological sex is immutable and should not be conflated with gender identity, as it was held that this constituted a philosophical belief.  Ms Forstater’s case recently went back to the Employment Tribunal and it has since been found that she was discriminated against by her employer in relation to her ‘gender critical beliefs’, which came to light after she expressed her beliefs over twitter, that that transgender women could not change their biological sex.

In Dr Mackereth’s case, the EAT held that his belief was protected under the Equality Act 2010 and Human Rights Act 1998, although it was noted that this belief could be deemed offensive; however, the EAT held that the Birmingham Employment Tribunal had not made a mistake in finding the measures adopted by the Respondent were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users, and on the risks to those individuals and, in consequence, to the Respondents.

Therefore, whilst the EAT recognised that the Claimant’s beliefs were protected, his claim was unsuccessful.

Comment

The decision highlights the importance of employers being mindful of opposing beliefs in the workplace. Employers should ensure that this is managed appropriately by careful considering any policy wording which may bring to light the issues raised in this case, whilst also ensuring that they provide equality and diversity training to all employees from the outset of their employment.

It is important to remember that both individuals who have religious or philosophical beliefs and transgender individuals are all protected under the Equality Act 2010. Therefore, employers will be liable for any acts of discrimination and harassment relating to this.

Employers should do all they can to accommodate and manage conflicting protected characteristics; however, should that ultimately prove impossible employers should be clear why they are taking action against an offending party.

If you have any queries in relation to discrimination, harassment or would like to discuss any training requirements please contact our employment team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

 

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