We recently reported on the landmark case of Forstater which decided that gender-critical beliefs are protectable under discrimination law. You can read more about the Forstater case in our blog: Maya Forstater wins tribunal claim for discrimination due to her gender (burleylaw.co.uk).

Following the Forstater decision, case law has been developing in the area of “transgenderism”, “gender critical beliefs” and “gender fluidity”. 

In another case, a doctor, who held a strong faith-based belief that biological sex could not be changed, has also succeeded in having his belief protected in law. 

Background

In the case of Mackereth v DWP [2022] EAT 99, Dr Mackereth had started working for the  Department of Work and Pensions (DWP) via an agency, as a health and disabilities assessor of benefits claimants. This role involved a significant amount of proximity with service users in face-to-face assessments. It was also required of him to produce reports based on his findings in the assessments. 

Dr Mackereth was a Christian who believed in the supremacy of the Bible. During his induction with the DWP, he was told that if he was dealing with a service user who was undergoing gender reassignment surgery, he would have to use their preferred pronouns.  He was told he would have to comply with this requirement because it was DWP’s policy. Dr Mackereth objected to this requirement, as it did not align with his beliefs as a Christian. Discussions followed but the matter was not resolved, and the agency informed Dr Mackereth that he would not be able to work for the DWP as a benefits assessor because he would not comply with the policy.

The Claim

M brought a claim against his employer, DWP, to the Employment Tribunal on the grounds of direct discrimination, less favourable treatment and indirect discrimination based on his belief in his religion, which he claimed was a protected characteristic. 

The Tribunal dismissed the claims, believing that he did not meet at least one or more of the ‘Grainger’ criteria (a set of requirements a belief must meet in order to be classed as a protected belief). 

Dr Mackereth appealed to the Employment Appeal Tribunal (EAT). 

The EAT appeal

Under section 4 of the Equality Act 2010 (EqA 2010), religion or belief is a protected characteristic. Section 10 of the EqA 2010 defines “belief” as any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief. The EAT upheld Dr Mackereth’s claim that his lack of belief was protectable.  In other words, the fact that he did not believe that biological sex could be changed was capable of protection against discrimination.  

When assessing the appeal, the EAT did find errors in the Tribunal’s decision in regard to using the Grainger criteria. 

The EAT believed that the initial Tribunal had held to the fifth criteria of the Grainger test too tightly. The fifth Grainger criteria is: “the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”.  The EAT held that this should be interpreted broadly so as to allow for the protection not just of beliefs held to be acceptable by the majority, but also of minority beliefs, even where those beliefs might offend others.

However, the EAT went on to uphold the Tribunal’s original decision to dismiss Dr Mackereth’s claims of discrimination, finding that he had not suffered direct or indirect discrimination in the way the DWP had applied its policy concerning the use of preferred pronouns for its service users.

What does this result mean for employers? 

This is a tricky area of discrimination law involving competing interests and employers must tread carefully.

This case underlines that beliefs which are contrary to transgenderism or gender fluidity are capable of protection under the Equality Act 2010, even though they are offensive to others.  However, it should not be taken to mean that employers should allow those with such beliefs to exercise them in the workplace. Employers still have the right to restrict the manifestation of a protected belief in the workplace where doing so is necessary, proportionate and in pursuit of a legitimate aim.

The DWP and the agency who employed Dr Mackereth had attempted to understand the reasons for his lack of belief and accommodate his wishes, but they had not been able to for various reasons.  In this context, it was reasonable for the DWP to uphold its policy.

An employer must always carry out a balancing exercise between the rights and freedoms of those with certain beliefs and the protection of others who find those beliefs offensive. Where there is clear evidence of a rational decision-making process and genuine and reasonable efforts to engage with and understand the beliefs concerned and make accommodations, the employer will, in our view, be in a strong position to defend a discrimination claim.