Can employers insist that staff use other people's preferred pronouns?

It's becoming more common for workers to announce their pronouns. Some wear badges advising customers how they prefer to be addressed and many people include them on their social media profiles and email signatures.

To what extent can employers require their staff to set out their pronouns or adopt those used by other people? The second point has been addressed by the EAT in Mackereth v The Department for Work and Pensions v Advanced Personnel Management Group (UK) Limited and provides some guidance.

Facts

Dr Mackereth is a doctor and was appointed to work as a health and disabilities assessor for the DWP. He is a Christian who does not believe that people can change sex (based on Genesis) and didn't believe in ‘transgenderism’ and ‘gender fluidity’.  

The DWP's policy required its staff to refer to their patients by their preferred name, title and pronouns. During his induction, Dr Mackereth made it clear that he would refer to trans people by their preferred name but would not adopt pronouns which were inconsistent with their sex at birth.  

DWP looked into how it could accommodate his beliefs. It considered moving him to a non-customer facing role or ensuring that he didn't assess transgender service users. It rejected the first option because he didn't have the relevant experience, and the second because the service operated a 'first come, first served' system and didn't always know, in advance, whether someone was transgender. And it didn't want to distress transgender users by moving them to another assessor if they were first seen by Dr Mackereth.

Dr Mackereth's manager met him to discuss the issue and to find out more about his beliefs. However, the doctor became upset, complained that "the government, the law and the GMC were all against people like him" and that he "knew how this would end and it would not be in his favour". His manager told him that no decision had been made about his future. 

The following day Dr Mackereth went home because he was too distracted to continue to work. He claimed that he'd been suspended and, after a number of conversations, DWP asked him to confirm that he would follow the agreed processes. He responded by saying: “I am a Christian, and in good conscience I cannot do what [you] are requiring of me” and effectively resigned.

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 that Mr Mackereth's specific beliefs (which were more narrowly defined) and how he manifested them were not. It rejected his claims and he appealed.  

EAT decision

The EAT, relying heavily on the Forstater judgment, confirmed that Dr Mackereth's specific belief based on Genesis was protected, as was his lack of belief in gender ideology. But, it said that the tribunal had been correct to dismiss his claims. 

There was no direct discrimination. He had not been 'interrogated' about his beliefs or pressurised to renounce them; nor had he been suspended or dismissed because of them. He also hadn't been harassed: DWP’s approach towards him had been a response to the way in which he had said he would manifest his beliefs. And that was contrary to the way it wanted to treat service users. 

The tribunal had not erred in rejecting his indirect discrimination claim either. The tribunal had found that DWP had legitimate aims in ensuring that service users were treated with respect and did not suffer discrimination. It had been entitled to find that the policy was a necessary and proportionate means of achieving those aims, particularly given the vulnerability of trans users.

Implications for other employers 

This is not the first time that 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 because she believed that same sex unions were contrary to God's law. The council instigated disciplinary proceedings threatening her with dismissal for a failure to comply with its "dignity for all" policy. She argued that the policy indirectly discriminated against her because of her Christian beliefs. However, the Court of Appeal said that the employer had a legitimate aim and its policy was a proportionate means of achieving it. It also said that the policy didn't impinge on her religious beliefs because she remained free to hold them.

The EAT reached a similar decision in McFarlane v Relate which involved a Christian counsellor who was dismissed for refusing to counsel gay people. 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. 

1. Consider alternatives

Generally, if there is a less discriminatory way for an employer to achieve a legitimate aim, they are expected to take it in order to justify its policy. I wonder if the outcome for Dr 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, Dr Mackereth hadn't asked to be excused from assessing a certain group of people (in this case trans people) - he had just said that he wouldn't use their preferred pronouns. Whilst that would be an issue if he adopted a trans person's sex pronouns when communicating about them, in a one-to-one context he could have referred to each person by their name and avoided using third person singular pronouns altogether. But that approach wasn't explored. It's possible that the DWP might have gone along with it. It could have imposed a trial period and monitored the situation to make sure that he was courteous and respectful to everyone he came into contact with. 

2. Relying on policies to regulate behaviour 

These cases do not mean that you can insist that your staff use the preferred pronouns of all the people they come into contact with. There's clearly a distinction between people whose personal beliefs mean that they can't or won't perform all of their duties, and those whose beliefs don't have any impact on their work. You may be able to insist that staff follow your policies in the first case but, provided they don't use their beliefs to harass others, not in the second. 

Nor should you force staff to declare their preferred pronouns. Pronouns are not neutral. The move towards declaring one's pronouns is based on the belief that everyone has an inner gender identity. Many people don't accept this, and we know from the EAT's decisons in Forstater and Bailey that people with gender critical beliefs are equally protected under the Equality Act.  

Take advice if you're not sure. 

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We discussed the practical difficulties employers may encounter when dealing with people with conflicting or different beliefs at our recent national seminars. If you'd like to be invited to our events, please let me know.

Our partner Glenn Hayes can help you to navigate these tricky issues. 

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