17 Oct 2019
The employment tribunal (ET) has held that a doctor’s ‘conscientious objection’ to refer to transgender patients in their chosen gender was ‘incompatible with human dignity’.
If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.
Mackereth v DWP and APMG Ltd
Under the Equality Act 2010, employees can bring claims if they’re subjected to discrimination because of a protected characteristic. A ‘philosophical belief’ is a protected characteristic.
Establishing when a belief is a ‘philosophical belief’ can be tricky.
The Employment Appeal Tribunal did provide some clarity in the case of Grainger v Nicolson.
In Grainger, it was held that a philosophical belief needs to meet all of the following criteria:
- be genuinely held
- be a belief and not an opinion or viewpoint based on the present state of information available
- be a belief as to a weighty and substantial aspect of human life and behaviour
- attain a certain level of cogency, seriousness, cohesion and importance
- be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Background to the case
The claimant was a practicing Christian with 26 years’ experience as a disability assessor. He was recruited to work by APMG on behalf of the DWP.
As part of an induction process, the claimant attended a training session. In the session there was a discussion as to how transgender patients should be referred to by assessors.
The DWP’s policy outlined that all assessors should use pronouns as preferred by a particular patient. If the patient identified as a man, they should be referred to as ‘he’.
The claimant objected. He stated he couldn’t, ‘in good conscience,’ do this due to his religious beliefs. He was later invited to a meeting where he reaffirmed his stance.
The meeting ended on good terms. However, the next day the claimant left work thinking he was going to be sacked, something he later submitted amounted to a suspension.
At this time, the respondents considered if he could be provided alternative work. The aim of this was to prevent the claimant coming into contact with any transgender patient. However, the options considered were not viable.
Therefore, a final email was sent to the claimant asking him ‘one final time’ if he would agree to the provisions of the policy. He confirmed he wouldn’t and, despite being told his resignation was therefore accepted, asserted that he’d been dismissed.
What did the claimant argue?
The claimant brought claims of direct and indirect discrimination as well as harassment due to a philosophical belief to a tribunal.
He outlined that Genesis 1:27 stated that God created man as male or female. Therefore, an attempt to change this gender was ‘sinful’ and that he therefore had a ‘lack of belief in transgenderism’.
He also stated that it would be ‘irresponsible and dishonest’ for a health professional to encourage this.
Although all parties accepted that his Christianity amounted to a protected characteristic, the respondents argued that his views on transgenderism should not be afforded protection. This was because these beliefs showed, at their heart, intolerance towards transgender people.
What did the tribunal say?
The ET dismissed his claims.
They found that his conscientious objection was ‘incompatible with human dignity’ and therefore failed to meet the definition of a legitimate philosophical belief, as outlined in Grainger.
As his beliefs had not satisfied Grainger, all of his claims fell away.
The tribunal went on to evaluate the facts in more detail in an attempt to ascertain if the claimant’s treatment could’ve resulted in a successful claim.
In relation to direct discrimination, the tribunal held that his treatment had been the direct result of the DWP wanting to treat its service users in a manner of their choosing.
The claimant’s treatment in this situation was therefore not in dissociable from his beliefs because others who did not hold these beliefs would’ve been treated in the same way.
The indirect discrimination claim also failed. The provision, criterion or practices in question— specifically that all staff were required to address transgender patients in their chosen gender—was justifiable.
The DWP’s intention was to avoid complaints from transgender individuals.
In terms of harassment, the conduct he was subjected to was unwanted, specifically the questioning of his beliefs. But his ‘suspension’ and ‘dismissal’, didn’t violate his dignity, as the respondents were duty bound to do what they did.
This case serves as a useful example of what amounts to a philosophical belief in a tribunal claim. And, how far this argument can be relied upon for a successful claim of discrimination.
The fact that the beliefs of the claimant conflicted with ‘the fundamental rights of others’, specifically the rights for transgender people to be referred to in their chosen gender, meant that his claim failed.
That said, employers should be mindful of what can amount to such a belief. Context will be key in these situations.
Previous examples include the belief that communicating with the dead could help to solve crimes.
To this end, employers should maintain clear policies and procedures which outline steps that will be taken to ensure discrimination will not take place in the company on the basis of a belief.
A disability assessor who was a practising Christian refused to refer to transgender patients by their chosen pronouns. He claimed that his ‘lack of belief in transgenderism’ in relation to his faith was the reason for this. The organisation he was working on behalf of (DWP) attempted to find him alternative work, but ultimately couldn’t find a way around the issue, and asked him to reconsider. He refused. They accepted the assessors resignation, but he claimed he’d been dismissed.
He brought a discrimination and harassment claim against his employer. The tribunal dismissed his claim as his belief was incompatible with human dignity. It’s worth noting that the belief that was dismissed as incompatible was his ‘disbelief in transgenderism’, not his Christianity.
This ruling supports previous rulings on what can and can’t be classified as a genuine philosophical belief in future case. Always be mindful of what can amount to a belief—context is always key in these cases.
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