Employment Law Cases

Mackereth v Department for Work and Pensions

An employee’s belief that a person cannot change their sex/gender at will, and his lack of belief in ‘transgenderism’, were protected under the Equality Act 2010. However, a tribunal had correctly held that his employer’s response to his refusal to use transgender service users’ preferred pronouns was not direct or indirect discrimination or harassment.

Background

Dr Mackereth worked as a Health and Disabilities Assessor for the DWP. His role involved meeting service users and conducting health assessments and was likely to involve assessing transgender service users from time to time. Dr Mackereth is a Christian with strongly held beliefs in relation to transgenderism. He claimed that these beliefs were protected as religious and/or philosophical beliefs. His beliefs include a belief, based on the Bible, that God created every person either male or female and that a person cannot change their sex/gender at will. He does not believe that ‘impersonating’ the opposite sex is beneficial to an individual’s welfare, or that society should accommodate and/or encourage anyone’s impersonation of the opposite sex. He believes that it would be irresponsible and dishonest for a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex. Dr Mackereth made clear that, because of these beliefs, he would not be able to address transgender service users by their chosen pronouns. This was contrary to the DWP’s policy.

Dr Mackereth claimed in tribunal that he had suffered less favourable treatment and discrimination because of his beliefs, in that pressure had been put on him to renounce his beliefs, he had been suspended from work, and he had been summarily dismissed. The tribunal considered that his particular beliefs in transgenderism were incompatible with human dignity and were in conflict with the fundamental rights of transgender individuals (i.e. they did not meet all of the Grainger criteria). They were not, therefore, protected as religious or philosophical beliefs under the Equality Act. Dr Mackereth appealed.

EAT decision

Dr Mackereth had partial success in his appeal.

The EAT held that the tribunal had got it wrong when applying the Grainger test. In particular, it had applied too high a threshold as regards the fifth Grainger criterion – that the person’s beliefs must be worthy of respect in a democratic society. It’s necessary, said the EAT, for the threshold to be set at a low level so as to allow for protection not just of beliefs held to be acceptable by the majority but also of minority beliefs, even where those beliefs might offend offers. It cited with approval the statement in Forstater v CGD Europe that in order for a belief to qualify for protection, it need only be established that ‘it does not have the effect of destroying the rights of others’. The EAT therefore found that Dr Mackereth’s belief amounted to a protected characteristic and likewise his lack of belief that it is possible for a person to change their sex/gender at will (to the extent it fell to be considered against the Grainger criteria).

However, the EAT upheld the tribunal’s alternative finding that Dr Mackereth had not suffered direct/indirect discrimination or harassment as a result. In particular the tribunal had ‘found as a fact that [Dr Mackereth] had not suffered the acts of less favourable treatment/harassment complained of (he’d not been put under any pressure by the DWP to renounce his beliefs and it had still been gathering evidence when Dr Mackereth decided to leave); it had permissibly found that [Dr Mackereth’s] beliefs were not the reason for the [DWP’s] conduct’ and ‘given the particular context, it could not be said that the tribunal had erred in finding the measures adopted by the [DWP] were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users and on the risks to those individuals’. A permissible distinction could be drawn between Dr Mackereth’s beliefs and the particular way in which he wished to manifest those beliefs. Any assessor not prepared to address service users in the manner of their choosing would have been treated the same way.

Comment

This decision has garnered some headlines. However, it is entirely in line with previous case law. The fact that someone has a belief does not give them the right to treat other people in a manner that conflicts with their employer’s legitimate requirements or indeed with the law. Dr Mackereth has indicated that he wishes to appeal.