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| 2 minutes read

Is deliberate mis-gendering grounds for dismissal?

A decision by the Employment Appeal Tribunal is awaited as to whether a Christian doctor suffered indirect religious discrimination because he refused to respect the preferred pronouns of his patients. In 2019, Dr Mackereth lost his claim for religious discrimination and harassment following his dismissal as a health and disabilities assessor for the Department for Work and Pensions. He appealed against this, using the ruling in the high-profile Forstater case. In that case, the judge found that Ms Forstater's secular belief that a person's biological sex cannot be changed, could amount to a protected philosophical belief under the Equality Act 2010. Whether conduct arising from that belief was discriminatory to trans-people was a question of fact in each case.  

In the Employment Tribunal, Dr Mackereth based his entitlement to hold similar views on the fact that he was a committed Christian and was simply following the dictates of the Bible and therefore it was a breach of his right to freedom of thought, conscience and religion to force him to "accommodate or encourage a patient's impersonation of the opposite sex". As a Christian, he felt that he was even more entitled to have his views protected, than was Ms Forstater who came at the issue from a non-religious point of view. The judge stated that there were plenty of Christians who were also supportive of the trans community and that it was not a central tenet of Christianity to be "anti-trans" so a policy of requiring staff to respect gender pronoun preferences was not indirectly discriminatory on religious grounds.  

While Ms Forstater's views were considered to be unpalatable by many of her colleagues, which is what led to the non-renewal of her contract, she was at least willing to use stated pro-nouns which meant that her belief was considered to be more acceptable in a democratic society. Given Dr Mackereth's categorical refusal to do likewise, his views are likely to sit lower down the scale of what is considered tolerable and will be certainly much harder for him to justify. But whether he wins or loses, this will remain a nuanced and hotly contested area of employee relations and there is an difficult balancing act for the employer trying to accommodate wildly different points of view in the workplace and especially in understanding where the line between acceptable and unacceptable falls. It is therefore imperative that employers take legal advice at an early stage to navigate a delicate situation and mitigate, as much as possible, the high risk of expensive and potentially inflammatory litigation.

“My case affects everyone, not just me and Bible-believing Christians, but anyone who is concerned by compelled speech and transgender ideology being enforced on the NHS and other public services.