When rights collide

Our experts look at two recent decisions on the clash between gender critical beliefs and trans rights

Most employers are pretty comfortable nowadays with protected characteristics and the need not to discriminate against them – and how to implement this in terms of policies, behaviour and action in the workplace. What remains thorny for employers are those situations where the rights of two protected characteristics clash.

July 2022 brought two newsworthy employment law decisions (Mackereth v DWP [2022] EAT 99 and Forstater v CGD Europe and others ET/22200909/2019) which both dealt with a clash between the religious / philosophical right to hold gender critical beliefs and the rights of those who are transgender.

Summaries of both cases

In Mackereth the EAT found (in line with the 2021 EAT decision in Forstater) that a Christian doctor's belief that a person cannot change their sex/gender at will was capable of protection as a religious belief under the Equality Act 2010 (the "EqA"). However, on the facts, it held that the doctor holding those beliefs had not been discriminated against on the grounds of his belief when his employer required him to comply with their policy of referring to service users by way of their chosen form of address.

In contrast, in Forstater an Employment Tribunal found that Forstater had suffered direct discrimination when her engager declined to renew her contract because of her expression of gender critical beliefs (including that sex should not be conflated with gender identity, and that trans women are men), on Twitter and at work.

Relevant law

The EqA list both religion/philosophical belief and gender reassignment as protected characteristics.

It is direct discrimination to treat someone less favourably because of a protected characteristic. It is indirect discrimination to apply a provision, criterion or practice to employees which puts a group with a protected characteristic at a particular disadvantage and it cannot be objectively justified (which, in simple terms, is about demonstrating you had a good enough reason for it). It is victimisation to treat someone less favourably because they have complained about discrimination. 

To qualify as a protected religious or philosophical belief a belief must:

• Be genuine.
• Relate to a substantial aspect of human life.
• Attain a certain level of cogency, cohesion and importance.
• Be worthy of respect in a democratic society.
• Not be incompatible with human dignity.
• Not conflict with the fundamental rights of others.

Offensive beliefs might therefore be protected, although case law has determined this will not be the case where they are "so extreme that they are akin to Nazism or totalitarianism". 

Tribunals are under a duty to interpret our law in a manner consistent with rights under the European Convention on Human Rights (ECHR) which includes:

• Freedom of thought, conscience and religion, including the freedom to manifest one's beliefs in practice (article 9).
• Freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas (article 10).
• Some qualification to the freedom to manifest belief and freedom of expression of belief where this is necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Case law makes a distinction between something done to an employee because of their protected belief (which may be direct discrimination and can never be justified) and something done to an employee because of the way in which they manifest their protected belief (which may be indirect discrimination unless it is justified).

It is not uncommon for employers (particularly public or larger organisations) to have policies which seek to limit inappropriate manifestations of belief in the workplace. Although this might be indirectly discriminatory, employers who have such policies usually feel that their rules are justified (and where they are sensible, very often they will be).

Detail of the Forstater case

Forstater was engaged as a consultant for CGD (an international development think tank based in America). Forstater began tweeting about gender and sex (linked with her belief that it is impossible for a male to become female) and entering debates on social media about gender identity issues in 2018. Some of her comments offended people, including members of the trans community. She also brought gender critical campaigning materials into the office. After colleagues complained that they found her conduct offensive, there was an investigation, subsequent to which her contract with CGD was not renewed.

The Employment Tribunal upheld two complaints of direct discrimination and one of victimisation – essentially finding that not renewing her contract of fellowship or offering her a senior fellowship contract was direct discrimination and that removing her profile from the CGD website was victimisation. Two other complaints of direct discrimination and one of victimisation were dismissed.

The evidence established that when CGD discussed the issue of her actions and tweets with Forstater (suggesting they were in contrast to the organisation's view of recognising people by the gender they themselves recognise) she:

• agreed to make it clear on her Twitter profile that her views were her own (and not related to CGD);
• made it clear she would always used someone's preferred pronouns;
• agreed not to bring gender critical materials into the workplace; and
• agreed to keep her gender critical views out of the workplace unless there was a specific request to talk about it. 

The Tribunal made it clear that where a belief is protected, simple statements of that belief are also protected and that there should be a certain amount of leeway as to how those protected beliefs could be legitimately expressed, indicating that provocative statements and comments satirising and mocking an opposing view could be protected to some degree. One inappropriate manifestation of that belief (related to a tweet which was found to be mocking a well-known city professional who was trans) would not justify action being taken as a whole. They determined that Forstater's tweets (which were statements of her belief) were the substantial reason for the less favourable treatment that they found CGD had taken. 

Detail of the Mackereth case

Mackereth was a doctor who applied to work as a health and disabilities assessor for the DWP, a role which would include conducting face to face assessments. Evidence established that this may have included a handful of assessments each year with a transgender service user.

During induction, DWP's policy with regard to transgender service users was discussed. It was made clear that this required that transgender individuals should be given their preferred name and title, and referred to in their presented gender. Mackereth explained that whilst he was happy using any first name that a service user wished, because of his specific Christian beliefs he objected to using pronouns or titles that were inconsistent with a service user's birth gender. There was a discussion between the DWP and Mackereth about his beliefs but, after he clarified that he would not follow the DWP's policy of referring to service users in their chosen form of address and pronoun, the DWP told Mackereth that he would not be able to work as a health and disabilities assessor. He therefore decided to leave.

The EAT agreed that Mackereth's beliefs were protected religious beliefs. However, it found that Mackereth had not been direct discriminated against, harassed or indirectly discriminated against because of those protected beliefs.

In terms of direct discrimination, in respect of acts which were established the EAT agreed with the Tribunal's decision that these had been done not because of Mackereth' s beliefs, but because the DWP wanted to treat service users in the manner of their choosing (so any health and disabilities assessor who refused to address service users in the manner they chose would have been treated in the same way, regardless of their belief).

In terms of indirect discrimination, the EAT found that the acts taken by DWP were in relation to Mackereth' s manifestation of his beliefs (and not his beliefs themselves). DWP's policy was objectively justified as necessary and proportionate means of achieving legitimate aims of ensuring that transgender service users were treated with response and in accordance with their rights under the Equality Acts 2010 and to provide a service that promoted equal opportunities. It was of importance, in terms of proportionality, that the DWP had already considered whether there was any practical way to enable Mackereth to avoid assessing transgender service users, but there was not.

Mackereth has indicated that he intends to appeal the EAT decision.

Takeaways for employers

Case law has made it very clear that there is now a relatively low threshold for a religious or philosophical to be protected and that this will also include offensive or shocking beliefs, so long as they are not extreme and do not destroy the rights of others.

Employers have no real ability to take legally permissible action to prevent an employee from expressing protected beliefs outside of the workplace (especially where it is very clear it is their personal view) unless they do so in a way that is inappropriate or offensive.

Dismissing an employee, or otherwise subjecting them to less favourable treatment, because of those protected beliefs (or simple expressions/assertions of them) will be direct discrimination.

Employers do, however, have the right:

• To restrict the manifestation of a protected belief in the workplace where doing so is necessary and proportionate in pursuit of a legitimate aim.
• To take action over bullying or harassment of other employees.

Relevant legitimate aims (for the purpose of objectively justifying action to restrict manifestations of a protected belief) are likely to include treating people with respect and commitment to equal opportunities. To be proportionate, an employer will also need to show that there was no alternative way to deal with the issue which would not impinge on an employee's freedom to manifest their protected belief (e.g. if there was a practical way for Mackereth not to need to assess transgender service users then insisting that he did and adhered to the DWP policy may not have been objectively justified).

If you have an issue in your workplace which may involve a clash between protected characteristics, do not take knee-jerk action. Talk to those involved to really understand what they believe and why, and take legal advice before taking action which could be perceived as less favourable treatment.