EAT overturns ET decision that a doctor’s belief that humans were either male or female did not meet the criteria for protection under the EA. The ET had applied too high a threshold when applying the Grainger criteria. The ET’s decision on the substantive claims of harassment, direct discrimination and indirect discrimination was upheld.

Facts
Mr Mackereth (M) is a doctor who applied to work as a health and disabilities assessor
(HDA) at the first respondent’s (DWP) assessment centre in Birmingham. This required
him to assess claimants for disability-related benefits, including conducting face-to-face
assessments. The second respondent provided HDAs to the DWP under contract.

All HDAs would be expected to have interactions with transgender service users, albeit
only on a handful of occasions each year.

M is a Christian; he gave evidence that he held a ‘commitment to the supremacy of the
Bible as the infallible, inerrant word of God and as the final authority in all matters of
faith and practice’. He had a conscientious objection to transgenderism and believed
that ‘God made humans “male or female”…’

At the induction stage of his employment M made it clear that he objected to the use of
preferred pronouns. After a fairly involved discussion as to how to proceed M effectively
resigned on the basis that he would not be able to refer to a service user by their chosen
sexuality and name.

Employment Tribunal
M brought a claim of direct discrimination, harassment, and indirect discrimination
on grounds of religious belief. The ET began by applying the five Grainger criteria
(from Grainger plc v Nicholson [2010] ICR 360 EAT; Briefing 549 [2009]). It considered
that certain aspects (but not all) of M’s beliefs were genuine, related to a weighty and
substantial aspect of human life and behaviour and had a certain level of cogency,
seriousness, cohesion and importance. However all his beliefs failed the fifth test,
Grainger V, which states that the belief must be: ‘worthy of respect in a democratic
society, be not incompatible with human dignity and not conflict with the fundamental
rights of others’.

The ET found that M’s beliefs were incompatible with human dignity and conflicted
with the fundamental rights of others, specifically transgender individuals.

Notwithstanding its decision on the protected characteristic, the ET went on to consider
M’s case on its merits on each of the causes of action he was advancing.

The harassment claim failed on the facts – the ET found that the purpose of the DWP’s
questioning of M was not to violate his dignity nor create an adverse environment for
him.

The claim for direct discrimination also failed. The ET found that ‘any person holding
[M’s] beliefs would have been treated in the same way as a person not holding those
beliefs who refused to refer to a service user using the service user’s preferred pronoun’.
The ET drew on Islington BC v Ladele [2009] ICR 387; Briefings 556 [2010] & 523 [2009]
and Lee v Ashers Baking Co Ltd [2018] 3 WLR 1294; Briefings 757 [2015], 819 [2017], 872
[2018] & 1002 [2022] – the reason for treating M less favourably was not his religious
belief but his refusal to use preferred pronouns.

As for the claim of indirect discrimination, it was common ground that a provision,
criterion and practice (PCP) requiring HDAs to use preferred pronouns had been applied,
and the ET accepted individual disadvantage and some group disadvantage. However the ET agreed with the DWP that the PCP was justified. The purpose of the policy was
to ensure that transgender service users were treated with respect and in accordance
with the DWP’s obligations under the Equality Act 2010 (EA). Those were legitimate
aims. The PCP was applied proportionately in that the DWP had considered all possible
alternatives to retain M’s services.

Employment Appeal Tribunal
On the first ground of appeal, as to the Grainger V issue, the EAT was assisted by its
recent judgment in Forstater v CGD Europe [2022] ICR 1; Briefing 998 [2021]. In that case
the EAT had held that the claimant’s belief, that sex was immutable, did not fail criterion
V of Grainger. It was not for the court to inquire into the validity of the belief (although
it must satisfy the other Grainger requirements). Freedom to hold a particular belief
went ‘hand-in-hand’ with the state remaining neutral as between competing beliefs.
It was not enough that the belief or statement had the potential to shock or disturb a
section or even most of society. Article 17 of the European Convention on Human Rights
(ECHR), which prohibited the use of the ECHR to destroy the rights of others, only became
relevant at a level where freedom of expression was used to ‘espouse hatred, violence
or a totalitarian ideology that is wholly incompatible with the principles of democracy’.
Only the ‘gravest violations of Convention principles should be denied protection’, and it
would only be in ‘extremely limited circumstances in which a belief would be considered
so beyond the pale’.

Amongst a number of criticisms of aspects of the ET’s reasoning on other Grainger
criteria, and noting that the ET did not have the benefit of the Forstater guidance,
the EAT had no hesitation in holding that the belief did meet the Grainger V test. The
tribunal had imposed ‘too high a threshold’ for the protection of a belief. The fact that
it was likely to cause offence could not mean that it was automatically excluded from
protection.

Furthermore the ET had fallen into error in taking into account the particular
employment context – the background of the disability assessments was irrelevant to
whether the belief met the Grainger tests (although it was certainly relevant to the
indirect discrimination claim).

However this was a Pyrrhic victory for M. The appeal ultimately failed on all substantive
elements. The EAT ruled that the ET’s approach to harassment, direct discrimination and
indirect discrimination was unimpeachable. The findings of fact were fatal to the claims
of harassment and direct discrimination, and in addition the ET had drawn a permissible
distinction between beliefs and the manifestation of those beliefs. There had been no
error of law in relation to legitimate aims and proportionate means.

Comment and implications for practitioners
The case of Mackereth is a salutary reminder of two principles. Firstly, in accordance with
Forstater, establishing that a belief merits protection under the EA requires a relatively
low threshold to be met. It will be difficult to show that the belief does not satisfy
the Grainger V criterion, particularly if it is a belief stemming from an established and
recognised religion.

Secondly, and conversely, the case is another reminder of the difficulty for claimants
in cases of alleged religion/belief discrimination. Mackereth is just the latest in a long
line of cases where the claimant is unsuccessful because the treatment that they allege
amounts to discrimination can be shown to have been due to the manifestation of the
belief rather than the belief itself.

This article was written by Joel Kendall and first appeared in the November 2022 edition of the Discrimination Law Association Briefings.