In Mackereth v Department for Work and Pensions (DWP) and anor, the Employment Appeal Tribunal (“EAT”) has held that a Christian doctor’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, it went on to hold that an employment tribunal was entitled to find that the employer’s response to his refusal to use transgender service users’ preferred pronouns, in his role as a health and disabilities assessor of benefits claimants, was not direct discrimination, harassment or indirect discrimination..
The claimant is a doctor. He is a Christian who holds the following belief or lack of belief that a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive, and sinful. The claimant does not believe in “transgenderism” and “gender fluidity,” such that he does not believe a person can change sex/gender or that “impersonation” of the opposite sex may be beneficial for a person’s welfare, or that society should accommodate/encourage such “impersonation”; and a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “Impersonation” of the opposite sex.
Having started employment as a health and disabilities assessor, carrying out assessments on behalf of the first respondent in relation to claimants for disability-related benefits, during his induction training, The claimant explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users. This conflicted with the respondents’ policies, and attempts were made to clarify the claimant’s position to see if his beliefs could be accommodated; Ultimately, the claimant left his employment and brought proceedings in the Employment Tribunal (“ET”), relying on the protected characteristic of religion or belief and claiming direct discrimination, harassment, and indirect discrimination.
Although accepting that Christianity was a protected characteristic, the ET found that the claimant’s particular beliefs did not meet the Grainger criteria (Grainger plc v Nicholson [2010] ICR 360, EAT) and were therefore, not a protected characteristic for the purpose of the Equality Act 2010. The ET went on to find that the claimant had not suffered the acts of less favorable treatment/harassment complained of and, therefore he had not suffered direct discrimination or harassment. The ET further held that the provisions, criteria, and practices applied (To use service users’ preferred pronouns and to confirm a willingness to adhere to the policy) were necessary and proportionate means of achieving the respondents’ legitimate aim (to ensure transgender service users were treated with respect and in accordance with their rights under the Equality Act 2010 and to provide a service that promoted equal opportunities). Subsequently, the claimant appealed the judgment.
The EAT held that even in the event that the claimant’s beliefs were ‘likely to cause offence”, this did not warrant their exclusion from protection. As for the claimant’s lack of belief in ‘transgenderism’, the EAT held that the ET had wrongly assumed that lack of belief necessarily denotes holding a positive view that is opposed to the belief and which must meet the Grainger criteria. The EAT held that it was clear from Forstater that lack of belief is protected under the Equality Act 2010, irrespective of the Grainger criteria.
Nevertheless, the EAT concluded that the PCPs were necessary and proportionate means of achieving the DWP’s legitimate aims – i.e. to ensure transgender service users were treated with respect and in accordance with their rights under the Equality Act 2010, and to provide a service that promoted equal opportunities.
Furthermore, the EAT did agree with the ET that the claimant’s belief that it would be irresponsible to encourage ‘impersonation’ of the opposite sex did not meet the fourth Grainger criterion, i.e. that the belief must have attained a certain level of cogency, seriousness, cohesion and importance
Having held that the claimant’s biblical belief and lack of belief in transgenderism were protected under the Equality Act 2010, the EAT nevertheless upheld the tribunal’s alternative findings that the claimant had not suffered direct discrimination, indirect discrimination or harassment as a result.
Case: Mackereth v Department for Work and Pensions and anor [2022] EAT 99
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