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Doctor’s religious discrimination claim fails

Senior Associate Solicitor, Jane Sinnamon

The Employment Tribunal in the case of Mackereth v The Department for Work and Pensions and another has considered whether a doctor had been discriminated against after he was dismissed for refusing to refer to transgender patients by their preferred pronouns.

Background

The Claimant was a doctor and worked for the Department for Work and Pensions (“the Respondent”) carrying out health assessments. As a result of the Claimant’s Christian views, he did not believe that a person could change their sex/gender and had a conscientious objection to transgenderism. These beliefs led the Claimant to refuse to refer to transgender patients by their preferred pronouns, which was in breach of the Respondent’s policy.

The Claimant’s manager met with him and told him that if he continued to refuse to address patients by their chosen pronoun, he would not be able to work face to face with patients. This meeting was followed by a letter which asked for further clarification of whether he would comply with the Respondent’s policy and the training that he had been provided with. The letter also stated that if the Claimant did not follow policy, his employment would be terminated.

The Claimant’s contract was later terminated and he brought claims of both direct and indirect discrimination and also harassment on the grounds of religion.

Decision

The Tribunal dismissed the claims.

Although the Employment Tribunal (“ET”) found that the Claimant’s beliefs were genuinely held and classed as a protected characteristic under the EqA 2010, such beliefs were incompatible with human dignity and the fundamental rights of others. The refusal to refer to a transgender person using their chosen pronouns could amount to unlawful discrimination and harassment.

Comment

This case demonstrates the difficulties that arise where the manifestation of an employee’s beliefs, which are capable of protection as a protected characteristic, come into conflict with the attributes of others, which also may be considered protected characteristics. The risk to employers in cases such as these is that taking action against employees, whose actions are potentially discriminatory, could potentially give rise to claims for discrimination in itself.

The Claimant has indicated that he intends to appeal the decision, and given that this is a first instance decision which follows on from other high profile cases of religious discrimination in recent years, this issue may make its way to the Employment Appeal Tribunal.

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