HR talking point: Developing case law on expressing gender-critical beliefs at work

Author: Darren Newman

Darren Newman

Two recent high-profile rulings have something important to say about direct religion or belief discrimination. However, both deal with a controversial topic - how an employer should deal with an employee who does not accept its approach to trans rights - so it is easy to miss that lying behind the controversy an important legal principle is being fought over, says consultant editor Darren Newman.

Mackereth and Forstater

The rulings are the Employment Appeal Tribunal (EAT) decision in Mackereth v Department for Work and Pensions and another [2022] EAT 99 and the employment tribunal decision in Forstater v CGD Europe and others ET/2200909/19.

In each case, the claimant took a position on the nature of gender reassignment that essentially asserted that someone's biological status as male or female is immutable.

In their view, whatever process of gender reassignment an individual undertakes - even if that leads to a gender recognition certificate - they would remain either male or female, depending on their characteristics at birth.

Different routes to the same belief

It is fair to say that the two claimants arrive at that position through very different routes:

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  • Dr Mackereth is a Christian whose belief is that a clear biological distinction between men and women is ordained by God and must not be interfered with.
  • Ms Forstater is a gender-critical feminist who believes that women are subject to oppression because of their biological characteristics and are entitled to organise on a same-sex basis to protect themselves against that oppression, excluding those who are biologically male.

The debate is a fraught one and I apologise if I have mischaracterised or oversimplified the beliefs of either claimant. However, it is not the nature of their beliefs that interests me as much as the nature of the discrimination that they alleged.

Contrasting outcomes in Mackereth and Forstater

Both Dr Mackereth and Ms Forstater were claiming direct discrimination based on the protected characteristic of religion or belief.

In the appeal decision Forstater v CGD Europe and others EAT/0105/20, the EAT held that Ms Forstater's beliefs are protected as they are philosophical beliefs "worthy of respect in a democratic society".

The employment tribunal in Mackereth initially held that Dr Mackereth's beliefs are not protected, but that point was overruled by the EAT, following the decision in Forstater.

At this point, the cases diverge. The EAT in Mackereth agreed with the employment tribunal that there was no discrimination. However, the employment tribunal in Forstater held that there was.

To understand why - quite rightly in my view - these cases resulted in different outcomes, we need to consider what direct discrimination actually is.

Less favourable treatment because of religion or belief

Direct discrimination is not the unfavourable treatment of someone with a protected characteristic - we all have protected characteristics. Direct discrimination is the less favourable treatment of someone because of that protected characteristic. In the case of religion and belief, it is the belief itself that must be the reason for the treatment complained of.

The Department for Work and Pensions (DWP) employed Dr Mackereth to carry out health assessments on individuals claiming disability-related benefits.

In the course of Dr Mackereth's induction training, the treatment of transgender people came up and he explained that, because of his beliefs, he was not prepared to comply with the employer's requirement to use the preferred pronouns of transgender service users. He left his employment, essentially claiming that he had been forced out.

The EAT agreed with the employment tribunal that there was no discrimination against Dr Mackereth.

Ms Forstater was engaged as a freelance consultant by a think tank. She complained that her contract was not renewed because her expressed views setting out her gender-critical position were seen as offensive to colleagues and contrary to the values of the organisation.

Cases on appeal
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The employment tribunal upheld Ms Forstater's claim of direct discrimination.

The differences between these two cases are, to a certain extent, obvious. Ms Forstater's employer had nothing to complain about when it came to the way in which she performed her duties. She had simply expressed a view - quite separately from any work she was doing - that conflicted with the values of the employer.

On the other hand, Dr Mackereth made it clear that he was not prepared to obey his employer's instruction about how his job should be performed. Given that transgender service users are entitled not to be discriminated against by the DWP, it is easy to see why a DWP assessor refusing to use their preferred pronouns would present a problem.

In other words, the DWP was not concerned with what Dr Mackereth believed but how he would behave. His belief might be protected but that did not give him the right to behave in a way that conflicted with the employer's interests.

In contrast, it was not Ms Forstater's behaviour that was at issue but the beliefs that she held. That was why her treatment amounted to direct discrimination while the treatment of Dr Mackereth did not.

Holding of beliefs vs objectionable expression

The principle that is emerging from the Forstater and Bailey cases is that an employee must not be treated less favourably for the mere expression of a religious or philosophical belief. It is the manner of that expression that must be objectionable or some conduct that is distinct from the belief itself (as in Mackereth).

However, it is not quite as simple as that.

In Forstater, it was clear that the employer's chief concern was not to root out and judge Ms Forstater's innermost thoughts. The issue for the employer was not just that she held those beliefs but that she expressed and sought to defend them. That was where the tension with colleagues arose. If she had held her belief quietly and secretly, there would have been no issue.

It is not straightforward to separate what someone believes from how they behave. If you have the right to believe something but have no right to act on that belief, what does that right really amount to? This is why art.9 of the European Convention on Human Rights covers not just the right to hold a religious or philosophical belief but also the right to manifest that belief.

In Forstater, the main case on which the employment tribunal relied was the 2021 Court of Appeal decision in Page v NHS Trust Authority [2021] EWCA Civ 255 CA. In that case, the claimant had been excluded from his role as a non-executive director of an NHS trust because of comments that he made in the media on the issue of adoption by same-sex couples. Those comments were based on his firmly held religious view that children were best brought up by a mother and a father.

The Court of Appeal upheld the employment tribunal finding that there was no discrimination. According to the Court of Appeal, Mr Page was not excluded because of his belief but because of his insistence on giving media interviews that caused the NHS trust difficulties in its relations with the LGBTQ+ community.

In making that finding, Lord Justice Underhill said that the case law recognises a distinction between instances where the reason for the treatment is:

  • the fact that the claimant holds or manifests a belief; and
  • the claimant's manifestation of that belief "in some particular way to which objection could justifiably be taken".

In Forstater, the employment tribunal decided that the question was therefore whether Ms Forstater had expressed her belief "in a way to which objection could justifiably be taken". After examining the various comments and arguments that she had made, the tribunal decided that no reasonable objection could be taken to the way in which she had expressed her beliefs.

Even more recently, an employment tribunal found that a barristers' chambers discriminated against one of its barristers because of her gender-critical beliefs. In Bailey v Stonewall Equality Ltd and others ET/2202172/2020, the tribunal found that the claimant was treated less favourably because of the beliefs that she had expressed and not because of the way in which she had expressed them.

Principle emerging from Forstater and Bailey

The principle that is emerging from the Forstater and Bailey cases is that an employee must not be treated less favourably for the mere expression of a religious or philosophical belief. It is the manner of that expression, or some conduct that is distinct from the belief itself, that must be objectionable (as in Mackereth).

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I think there are some potential problems with that approach.

Different employers - and different tribunals - may have varying views about what makes the manner of an employee's expression of a belief objectionable.

Take the statement "I believe that same-sex attraction is sinful". As a religious belief, that will certainly be protected by the Equality Act 2010, even if it is a view that will cause offence to many.

If an employee calmly and politely chooses to express that belief in the workplace, can the employer object to that? Should the employer not be entitled to say "You can believe what you like, but don't bring your beliefs into the workplace"?

It is not at all clear to me what the right answer is. The debate about how far someone's beliefs can be separated from their expression of those beliefs is not over.