Sarah Gilzean

The claimant in Mackereth v Department for Work and Pensions was a Christian doctor who (1) held a belief that a person cannot change their sex/gender at will and to do so was sinful; and (2) held a lack of belief in transgenderism and gender fluidity. His beliefs meant that he refused to use the preferred pronouns of transgender service users.

This conflicted with the respondent’s policies and although attempts were made to clarify his position to see if his beliefs could be accommodated, ultimately he left his employment and claimed direct and indirect discrimination and harassment based on the protected characteristic of religion or belief. The claim was unsuccessful with the tribunal finding that the particular beliefs did not meet the criteria necessary to be worthy of protection under the Equality Act 2010.

In the alternative, the tribunal found that even if the beliefs had been worthy of protection, based on the particular facts in this case the claims would still have been unsuccessful. On the particular facts of this case, the claimant had not been subjected to direct discrimination or harassment. The respondent’s provision, criterion or practice of requiring preferred pronouns to be used, and for employees to confirm a willingness to do that, was justified.

The claimant appealed to the Employment Appeal Tribunal (EAT). The EAT held the tribunal had erred in finding the claimant’s beliefs were not protected under the Act. When considering whether the belief was worthy of respect in a democratic society the tribunal had imposed too high a threshold. The EAT held that the threshold must be set low enough to allow for protection of minority beliefs, even where those beliefs offend others.

To meet that threshold it only needs to be established that a claimant’s belief “does not have the effect of destroying the rights of others”. This is in accordance with the findings of the EAT in the case of Forstater v CGD Europe and others. However, the claimant was still unsuccessful as the EAT upheld the tribunal finding that on the facts of this case no discrimination or harassment had occurred. The employer had been entitled to act in the way it did because of the manner in which the claimant had manifested his beliefs (by refusing to use the preferred pronouns).

The claimant in this case has indicated he intends to appeal this judgment, so neither this nor the recent judgment finding in favour of the claimant in Forstater are the end of the road for this complicated and highly sensitive issue.

Sarah Gilzean is a senior associate at Morton Fraser