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

Dr. Mackereth was a physician hired to serve as a health and disabilities assessor for the DWP in the case Mackereth v. The Department for Work and Pensions v. Advanced Personnel Management Group (UK) Ltd. He was a Christian who rejected "transgenderism" and the idea that people can change their sexual orientation based on Genesis.

According to DWP policy, employees must use patients' preferred names, titles, and pronouns when addressing them. Mackereth made it clear during his induction that he would use the preferred name of trans people but would not use pronouns that were inconsistent with their sex at birth.

The DWP investigated how it could respect his beliefs. It considered transferring him to a position where he wouldn't interact with customers or making sure he wouldn't evaluate transgender service clients. The first option was rejected because he lacked the necessary experience, and the second was rejected because the service used a "first come, first served" policy and sometimes had no way of knowing in advance if a client was transgender.

The manager of Mackereth met with him to talk about the situation and learn more about his beliefs. But the doctor became angry. He claimed he had been suspended when he returned home the next day. The DWP asked him to confirm that he would follow the established procedures, but he refused and inadvertently tendered his resignation.

He alleged that he had been subjected to direct and indirect discrimination and harassment because of his religious beliefs and/or lack of beliefs. The tribunal found that a belief in Christianity was protected but Mackereth's specific beliefs (which were more narrowly defined) and how he manifested them were not. He appealed.

EAT decision

The EAT, relying heavily on the Forstater judgment, confirmed that Mackereth's specific belief was protected, as was his lack of belief in gender ideology. But it claimed that the tribunal's decision to reject his claims was sound. Direct discrimination didn't exist. He had not been "interrogated" about his convictions, under any duress to deny them, nor had he been demoted or fired due to them. He hadn't been bullied either. The way he had declared he would practise his beliefs was in opposition to how the DWP wanted to treat service users, so that was how the DWP had approached him.

Implications

This is not the first time the courts have had to consider how the Equality Act applies in circumstances where an employee's beliefs clash with a basic aspect of their job. In Ladele v London Borough of Islington, a Christian registrar refused to conduct same-sex civil partnerships and was disciplined. The Court of Appeal held that the employer had a legitimate aim of promoting ‘dignity for all’ and asking all staff to comply with its policy was proportionate. Similarly, in McFarlane v Relate, a Christian counsellor was dismissed for refusing to counsel gay people. The EAT found the requirement to serve the community in a non-discriminatory manner was a legitimate aim and asking all staff to comply with it was justified.

Generally, if there is a less discriminatory way for an employer to achieve a legitimate aim, they are expected to take it. One wonders if the outcome for Mackereth might have been different if he'd engaged with his managers about how the service could accommodate his beliefs without prejudicing the duties it owed to its service users.

Unlike Ladele and McFarlene, Mackereth simply stated that he wouldn't use their preferred pronouns when assessing a particular group of people (in this case, trans people). In a one-to-one setting, he could have called each person by their name and avoided using third-person singular pronouns altogether. However, doing so would be problematic if he adopted a trans person's sex pronouns when speaking about them. That strategy wasn't looked into. However, it's possible that the DWP would have agreed.

These situations do not entitle you to demand that your staff use the preferred pronouns of every individual they interact with. There is a distinct difference between those whose personal beliefs prevent them from carrying out all of their responsibilities or from doing so outright and those whose beliefs have no bearing on their work. You shouldn't make employees use their preferred pronouns either. They are not neutral, pronouns. The idea that everyone has an innate sense of gender is the foundation of the movement toward declaring one's pronouns. Many people disagree with this, but the EAT's rulings in Forstater and Bailey show that those who hold gender-critical beliefs are also covered by the Equality Act.