In Mackereth v the Department for Work and Pensions Dr David Mackereth had been recruited by Advanced Personnel Management Group as a Health and Disabilities Assessor on behalf of the DWP. He was contracted to assess individuals for disability-related benefits, some of whom were contemplating, undergoing or had undergone gender reassignment. However, he believed in the truth of Genesis 1:27 – that “male and female He created them” – and, therefore, that a person could not change his or her sex/gender at will and that it would be irresponsible and dishonest for, eg, a health professional to accommodate and/or encourage a patient’s “impersonation” of the opposite sex.
Because of those beliefs, he refused as a matter of conscience to refer to clients using the pronoun of their choice – which was what the DWP required him to do. It later became apparent the issue also extended to styles and titles of address. He was suspended and, ultimately, sacked. An Employment Tribunal rejected his claim for direct discrimination and harassment
He appealed and was equally unsuccessful. The EAT found that the ET had erred in finding that Dr Mackereth’s belief in Genesis 1:27 did not amount to a protected characteristic and, likewise, his lack of belief that it is possible for a person to change his or her sex/gender at will. Nevertheless, in that particular context it could not be said that the ET had erred in finding that the measures adopted by the employer were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals.
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