No religious discrimination involved when preferred gender policy enforced

Dr Mackereth, a Christian doctor who had worked as a Health and Disabilities Assessor, has lost his claim for religious discrimination against the Department for Health and Pensions. The lengthy employment tribunal judgment provides an instructive example of the difficulties employers can face when implementing diversity and inclusion policies in relation to transgender employees and service users. It also illustrates the need for sensitivity but firmness when dealing with staff who feel unable fully to comply with such policies on religious grounds.

In Dr Mackereth’s case the difficulties first arose during his induction training, when it emerged that his religious beliefs as a Christian clashed with the DWP’s policy to refer to service users by their preferred title and gender. 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 to be addressed. 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 tribunal dismissed claims of direct and indirect discrimination because of religious belief and additional claims of harassment related to religion. Somewhat controversially, the tribunal found that Dr Mackereth’s beliefs about transgenderism did not qualify for protection under the Equality Act, since they were incompatible with human dignity and conflicted with the fundamental rights of others. However it also dismissed the direct discrimination claim on the more conventional grounds that the less favourable treatment was not because of his Christian beliefs as such, but because of the way they were manifested: any other person taking a similar position in relation to the DWP’s policy about addressing transgender service users would have been treated in the same way.

The complaint of indirect discrimination was also dismissed. Even if the enforcement of the policy had put Christians at a particular disadvantage (which the tribunal did not accept because it had taken the view that Dr Mackereth’s particular beliefs on this issue did not qualify for protection) it would nonetheless have been justifiable as a proportionate means of achieving a legitimate aim. Finally, the complaint of harassment was rejected, largely because the tribunal did not accept the way Dr Mackereth had portrayed the events leading up to the end of his employment.

Since this is a first instance decision, it is not binding on other employment tribunals and is subject to appeal. It has however attracted considerable interest, because it is believed to be the first decision at any level addressing how to balance an employer’s need to treat transgender people with dignity and respect with competing religious views of its employees.

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