At a glance
- The Employment Appeal Tribunal (EAT) found that a Christian doctor who was dismissed because he would not agree to use the preferred pronouns of transgender users was not directly or indirectly discriminated against or harassed on grounds of religion of belief.
- 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 and, in consequence, to the employer.
Background
Dr Mackereth is a doctor who applied to work as a health and disabilities assessor for DWP, which would have required him to assess claimants for disability-related benefits.
He is a Christian who believes that a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive and sinful. He has a lack of belief in ‘transgenderism’ and ‘gender fluidity’, such that he does not believe a person can change sex/gender, that ‘impersonating’ the opposite sex may be beneficial for a person’s welfare, or that society should accommodate/encourage such ‘impersonation’. Dr Mackereth also has a belief that it would be irresponsible and dishonest for a health professional to accommodate/ encourage a patient’s ‘impersonation’ of the opposite sex.
During his induction training Dr Mackereth explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users.
This conflicted with DWP’s policies and attempts were made to clarify Dr Mackereth’s position to see if his beliefs could be accommodated. However, ultimately he left his employment (less than a month after it started) and brought claims in the employment tribunal (ET) for direct discrimination, harassment and indirect discrimination on the grounds of religion or belief. His case was put on the basis that he was a Christian and his religion was a relevant protected characteristic for the purposes of sections 4 and 10 Equality Act 2010 (EqA). In the alternative, he relied on certain statements of religious and/or philosophical belief.
Outcome
ET decision
The ET accepted that Christianity was a protected characteristic but found that Dr Mackereth’s particular beliefs did not meet the Grainger criteria, so none of the beliefs could amount to a protected characteristic under EqA.
The ET went on to find, in the alternative, that even if his beliefs did amount to a protected characteristics for the purposes of EqA, Dr Mackereth had not suffered the acts of less favourable treatment/ harassment complained of and that he had not suffered direct discrimination or harassment. It further held that the provisions, criterions or practices (PCPs) applied (to use service users’ preferred pronouns and to confirm a willingness to adhere to that policy) were objectively justified. The legitimate aim being to ensure transgender service users were treated with respect and in accordance with their rights under EqA, and to provide a service that promoted equal opportunities.
EAT decision
The EAT dismissed Dr Mackereth’s appeal.
It was not in dispute that Dr Mackereth’s Christianity was a protected characteristic under EqA but his case depended upon his demonstrating that his specific beliefs, or lack of belief, fell within section 10 EqA. The EAT found that the ET had erred in its treatment of Dr Mackereth’s beliefs. Generally, it had erred in its approach to the question of whether the beliefs were worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others (fifth criterion in Grainger). It had wrongly considered Dr Mackereth’s beliefs relative to his particular employment and had erroneously assumed they must give rise to unlawful discrimination or harassment. The ET had also focused on the potential manifestation of Dr Mackereth’s beliefs instead of the beliefs themselves and had applied too high a threshold (whereas in Forstater the EAT had found that a belief must only satisfy very modest threshold requirements).
Notwithstanding this, the ET had appropriately gone on to consider each of Dr Mackereth’s claims on the merits and those alternative findings were not tainted by the ET’s approach to the question of philosophical belief. The ET’s findings that there had been no direct discrimination and harassment were upheld. With regard to indirect discrimination, on the issue of group disadvantage, Dr Mackereth had accepted that his particular beliefs were not shared by all Christians, so there could be no objection to the ET’s conclusion in this regard. And, in any case, the ET had correctly decided that the PCP was objectively justified. The measures adopted were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals and, in consequence, to the respondents.
“We cannot see that the ET erred in concluding that the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals…”
What does this mean for employers?
As we’ve seen the ET and EAT do in other cases in this area, the EAT acknowledged that this case may touch on issues of wider social concern and debate. It made clear that it expressed no view as to the merits of any side of that debate, as it is not the role of the EAT to do so. Its function is to determine such questions of law as arise in the case before it.
This is another example of a case where the employer had to balance conflicting rights in the workplace and again shows, as seen in other cases, the relatively low threshold applied by the courts when determining whether a belief qualifies for protection under section 10 EqA. Interestingly in this case, a distinction could be drawn between Dr Mackereth’s protected beliefs and the particular way in which he wished to manifest those beliefs ie his inability to use the preferred pronouns of transgender service users, which meant his direct discrimination claim had to fail.