Halifax recently caused a stir in the media with its new policy on staff pro-noun badges. “Pronouns matter” was the caption used by Halifax alongside a photo of one of its staff badges.
Halifax’s policy was heralded by some but criticised by others. LGBTQ+ charity, Stonewall, praised Halifax for introducing a “simple yet impactful way to make sure LGBTQ+ identities are respected – for employees and customers alike.” Some customers, however, referred to the policy as “virtue signalling” and accused Halifax of alienating people.
The response by Halifax to the controversy was to issue a statement, stating that “We strive for inclusion, equality and quite simply, in doing what’s right” and “If you disagree with our values, you’re welcome to close your account.”
Increased use of preferred pro-nouns
Encouraging staff and customers to use preferred pro-nouns is a relatively new concept and is about raising and sharing an awareness and acceptance of different, including non-binary, gender identities. Many employers have already introduced policies within the workplace, asking staff to sign off emails with their preferred pro-nouns. Halifax, however, appears to have been one of the first businesses to mandate the use of pro-nouns.
Is it, perhaps, only a matter of time before business start making the use of preferred pro-nouns compulsory among staff? If so, what, if any, legal repercussions could there be for employers who choose to take this stance?
Conflict with other rights?
By coincidence, there was recently a case before the Employment Appeal Tribunal decision that involved the use of preferred pro-nouns at work. The case involved a claim of unfair dismissal by one Dr Mackereth against the Department of Work and Pensions (DWP). Dr Mackereth was employed by the DWP to carry out disability benefits assessments. During his induction training, he told his employer that because he was a Christian, he would not use preferred pronouns for service users who were transgender. He believed that a person could not change their sex or gender at will.
The DWP tried to accommodate his beliefs, even though they contradicted its policies, but Dr Mackereth eventually resigned, subsequently bringing claims against the DWP for direct discrimination, harassment, and indirect discrimination on the grounds of his religious belief.
Dr Mackereth’s claims failed in the Employment Tribunal and also on appeal. It was held that he had not been less favourably treated because of his beliefs, nor had he been harassed because of his beliefs. In terms of the claim of indirect discrimination, the DWP’s requirement for the doctor to use service users’ pronouns and to confirm his willingness to do so were considered justifiable because of the need to ensure that transgender service users were treated with respect and without discrimination, and for the purpose of promoting equal opportunities.
The Employment Appeal Tribunal did, however, conclude that the doctor’s lack of belief in transgenderism was one that was protected under the Equality Act 2010 according to the legal tests set out in case law. Nonetheless, the decision made by the tribunal – that Dr Mackereth had not been discriminated against – was still the correct one on the facts.
The case highlights the potential issues that can arise where an employee refuses to use preferred pro-nouns in the course of their work. Interestingly, the employee resigned before any action was taken by the employer in response to their refusal to comply with their policy on using preferred pro-nouns. If the employer had, for example, dismissed the doctor for his refusal to use preferred pro-nouns, this would have led to a direct conflict between the right to freedom of belief and the right to freedom of expression.
Encourage but do not mandate
Introducing a policy whereby staff are encouraged to use preferred pro-nouns, whether in their email sign offs or by wearing pro-noun badges, demonstrates a positive commitment to inclusivity and diversity. To make such a policy compulsory among staff, however, is inadvisable, as not only could it give rise to legal issues (as highlighted above, where objections are made on religious or other grounds) but it could have the unintended effect of alienating employees who do not want to declare their gender identity at work and/or of further excluding employees who are transgender or non-binary.
If you are considering introducing a policy on using preferred pro-nouns at work, we recommend a policy that encourages but does not mandate because, by giving your employees the choice, you are more likely to achieve acceptance and inclusivity.
Case reference: Mackereth v Department for Work and Pensions & Anor (Religion or belief discrimination – sections 4 and 10 Equality Act 2010 – direct discrimination – harassment – indirect discrimination)  EAT 99 (29 June 2022) (bailii.org)