Can employers mandate that employees use the preferred pronouns of others?

Based on Genesis, the doctor had a faith that made him reject transgenderism and the idea that people could change their sexual orientation. He was Dr. Mackereth, a doctor who was contracted by DWP to act as an assessor for health and disability in a case of Mackereth v The Department for Work and Pensions v Advanced Personnel Management Group (UK) Ltd.

The preferred names, titles and pronouns of patients must be used by employees according to DWP policy. During his induction Mackereth made it clear he would use trans people’s preferred name but not pronouns that did not align with the sex identified at birth.

The DWP explored whether it can accommodate these beliefs. It considered moving him into another role where he would not have to deal with customers or ensuring he does not assess transgender clients seeking service. The first possibility was rejected because it demanded some experience which Mackareth lacked while the second one was dropped since in other instances it operated on “first come first serve” basis hence there were times when a client could be a transgender without anyone realising this in advance.

His boss met him to discuss about what happened as well as learn more about his religious beliefs. This led to an angry conversation between the two involving reference to his suspension when he returned home the following day . On being asked by DWP if he will adhere to existing rules, she refused thus inadvertent resignation.

His claim was of direct and indirect harassment and discrimination due either belief or lack thereof in God. The belief system of anyone who is Christian is protected under UK law; however, Mr MacKeareth’s belief system which is more specifically defined and how he has shown that they are expressions of this religion cannot be defended hence making them unprotected by law. And this became an appeal issue.

EAT decision

According to EAT’S specific affirmation such as that from Forstater decision, both Mr MacKerath’s religion and his lack of beliefs concerning gender ideology were protected. But it stated that the tribunal had a right to dismiss all his claims. Forstater ruling was followed. Mackereth had experienced no direct discrimination. There was no “interrogation” or pressure on him to deny his convictions nor did he have any experience of being demoted or sacked for them. In addition, there hadn’t been bullying towards him either. Thus, the employer responded as it did because Mackereth said he would apply such beliefs in a manner inconsistent with DWP’s approach to service users.

Implications

This is not the first time courts have considered how far the Equality Act can go when an employee’s religious opinions clash with an essential part of their job. Ladele v London Borough of Islington involved a registrar who refused to perform same-sex civil partnerships because she was Christian and was disciplined for this attitude . The employers aim for upholding ‘dignity for all’ and requiring uniform obedience by all employees has been held legitimate by the Court of Appeal in Ladele v London Borough of Islington . Similarly, in McFarlane v Relate, a counsellor was dismissed for refusing to counsel gay people on grounds that he is Christian . EAT ruled that compelling employees to serve any community without discrimination constituted a valid objective hence obliging every staffer to respect it

One wonders whether Mackereth would have had a different outcome if he had engaged with his managers about how the service could accommodate his beliefs without affecting its obligations towards service users.

Unlike Ladele and McFarlene, Mackereth just said that he will not use their chosen pronouns when examining a specific group of people (in this case, trans persons). In that regard, he could have called each person by name or avoided using third person pronouns entirely in one-to-one conversations. However, it could be problematic for him to refer to the sex of a trans person when talking about them. That was not contemplated. Nevertheless, it may have been taken by DWP.

These situations do not entitle you to demand that your staff use the preferred pronouns of every individual they interact with. There is an important difference between those who are unable to perform all of their duties or any part thereof due to their personal beliefs and others whose beliefs have no bearing on what they do. Do not insist on employees using preferred pronouns either. Pronouns are not neutral. The idea that everyone has an innate sense of gender is at the base of stating one’s pronouns movement. Some may disagree but EAT judgments in Forstater and Bailey suggest that those holding gender-critical beliefs are also covered by the Equality Act.