The Employment Appeal Tribunal (EAT) handed down its decision in the case Mackereth -v- (1) Department for Work and Pensions and (2) Advanced Personnel Management Group (UK) Ltd last week. The EAT upheld the ET’s decision that Mr Mackereth (M), a Christian doctor who refused to refer to transgender clients by their preferred pronoun, had not been subject to discrimination.
Background
M commenced employment on 29 May 2018 with the Second Respondent (APMG) which contracted with the First Respondent (the DWP) to provide Health and Disabilities Assessors (HDAs). APMG and the HDAs it supplied were required to adhere to the DWP’s policies/procedures, including in relation to diversity and equality.
The HDA role involved carrying out assessments in relation to claimants for disability-related benefits. During the induction process M stated that his beliefs meant he would not agree to use the preferred pronouns of transgender service users. This was at odds with the DWP’s policies. Those policies provided, amongst other things, that, ‘A transgender customer may be undergoing any stage of their ‘transitioning’ when they start to engage with DWP: They should be treated with respect and referred to in their presented gender at all times’ and, ‘You should always address the customer in their presented sex – try to use the person’s name where possible rather than referring to a person’s gender’.
Attempts were subsequently made to clarify M’s position and identify if his beliefs could be accommodated. However, before the conclusion of that assessment process M parted ways with the respondents and brought proceedings in the Employment Tribunal (ET) under the Equality Act 2010 (EqA). M claimed direct discrimination, harassment and indirect discrimination relying on the protected characteristic of religion or belief (s.10 EqA).
It was not in dispute that M’s Christianity was a protected characteristic, but his case depended on M demonstrating his specific beliefs/lack of belief (as detailed below) fell within s.10 EqA. M’s specific beliefs were:
a) in the truth of Genesis 1:27, that a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive and sinful;
b) a lack of belief in ‘Transgenderism’ and ‘gender fluidity’ (specifically he did not believe (i) a person can change sex/gender (ii) that ‘impersonating’ the opposite sex may be beneficial for a person’s welfare, or (iii) that society should accommodate/encourage such ‘impersonation’; and
c) it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s ‘impersonation’ of the opposite sex.
The ET held M’s beliefs did not meet the criteria established in Grainger plc -v- Nicholson (a key authority on the factors to be considered when determining whether a belief is protected by s.10 EqA) and that even if his beliefs did amount to a protected characteristic for the purposes of the EqA he had not suffered the less favourable treatment/harassment complained of and had not been subjected to direct discrimination or harassment. The ET further held that the provisions, criteria and practices (‘PCPs’) applied:
a) to use service users’ preferred pronouns and
b) to confirm a willingness to adhere to the relevant DWP policy
were objectively justified, being necessary and proportionate means of achieving the DWP’s legitimate aims of ensuring transgender service users were treated with respect and in accordance with their rights under the EqA, and to provide a service that promoted equal opportunities.
M appealed.
EAT decision
M’s Beliefs
The EAT determined, in a detailed 61-page judgment, that M’s belief (a) and lack of belief (b) (above) were protected under the EqA.
The EAT confirmed that for a belief to qualify for protection it is necessary only to establish that ‘it does not have the effect of destroying the rights of others’ (see Forstater -v- CGD Europe and ors). Therefore, the fact that M’s beliefs were ‘likely to cause offence’ did not automatically mean they were excluded from protection.
Direct Discrimination and Harassment
Notwithstanding its findings about M’s beliefs, the EAT determined that the ET had been entitled, having considered each of M’s claims on the merits, to:
- find M had not suffered the acts of less favourable treatment/harassment complained of – it was noted M was not suspended or pressurised to renounce his beliefs but merely to clarify his position. In addition, a final decision to dismiss had not been made when M left – the respondents were still at the information-gathering stage and had not made a final decision;
- find M’s beliefs were not the reason for the DWP’s conduct – the reason was that it wanted to treat service users in the manner of their choosing;
- draw a distinction between M’s beliefs and the way he manifested those beliefs – any HDA not prepared to address service users by their preferred pronoun(s) would have been treated the same way, regardless of whether they shared M’s belief; and
- be satisfied that the relevant conduct had neither the purpose nor effect required to amount to harassment.
Indirect Discrimination
In relation to the justification aspect of this head of claim, the EAT found that the ET had properly taken account of the relevant context and had carefully evaluated the DWP’s concerns thereby entitling it to conclude there were particular sensitivities arising from the face-to-face interactions M would have with service users and also that the DWP was seeking to clarify M’s position and to accommodate his beliefs. Given the particular context, it could not be said that the ET had erred in finding 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 and, in consequence, to the respondents.
In conclusion, the EAT concluded that whilst it accepted some of M’s beliefs qualified for protection under the EqA he had not been subjected to discrimination.
What now?
M has already stated his intention to appeal the EAT’s decision; and the Christian Legal Centre, which described the EAT’s decision as ‘mixed’ and ‘muddled and confused’, has stated it will stand with M and concluded, ‘This ruling means that you can believe that it is impossible to change sex but if you live out that belief as a doctor your job may be at risk’. It seems therefore that we have not read the final chapter in this long-running litigation.
We are currently awaiting a number of other significant decisions in this complex area, involving the interaction between different characteristics/beliefs, including from the EAT in Higgs -v- Farmor’s School – another case looking at the manifestation of beliefs and the ET in the much-publicised discrimination claims Forstater and Bailey -v- Stonewall Equality Ltd. These decisions are likely to impact on diversity and inclusion policies and associated processes operated by employers and we will be reporting on them and the repercussions once the judgments are issued.
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
