Dr Mackereth's beliefs (as detailed below) were protected under the Equality Act 2010 ("the Act"), however the respondents' response when he refused to use preferred pronouns was not discriminatory.
The Act incorporates religion or belief as a protected characteristic under section 4. Section 10 describes belief as "any religious or philosophical belief and a reference to belief includes a reference to a lack of belief".
Article 9 of the European Convention on Human Rights ("ECHR") provides for the freedom of thought, conscience and religion. The freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Re-cap on Grainger Plc v Nicholson (EAT)
When deciding whether a belief is protected under the Act the following criteria were set out by the EAT:
- The belief must be genuinely held.
- It must be a belief and not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Dr Mackereth is a Christian doctor and holds the following beliefs or lack of belief:
(a) a belief 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"; such that he does 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;
(c) a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient's "impersonation" of the opposite sex.
Dr Mackereth started his employment as a health and disabilities assessor and carried out assessments on behalf of the first respondent in relation to claimants for disability-related benefits. During his induction Dr Mackereth explained his beliefs were such that he would not agree to use the preferred pronouns of transgender service users. This stance conflicted with the respondents' policies and attempts were made to seek clarity on Dr Mackereth's position to see if his beliefs could be accommodated. Ultimately Dr Mackereth left his employment and brought claims in the Employment Tribunal for direct discrimination, harassment and indirect discrimination, relying upon the religion or belief protected characteristic.
The Tribunal accepted that Christianity was a protected characteristic but found that Dr Mackereth's particular beliefs did not meet the Grainger criteria (set out above). The Tribunal went on to hold that even if his beliefs did amount to a protected characteristic for the purposes of the Act, he had not suffered the acts of less favourable treatment/harassment complained of and that he had also not suffered direct discrimination or harassment. The Tribunal held that the provisions, criterions and practices ("PCPs") applied (namely the policy of using service users' preferred pronouns and the requirement for employees to confirm their willingness to adhere to that policy) were both necessary and a proportionate means of achieving the respondents' legitimate aims. These aims were to ensure transgender service users were treated with respect and in accordance with their rights under the Act and to provide a service that promoted equal opportunities.
The Tribunal was satisfied that this decision was aligned with Article 9 of the ECHR as the right to manifest a religion or belief is a qualified right in that it is subject to the need to protect the rights and freedoms of others.
Dr Mackereth appealed to the EAT.
Although the EAT concluded that Dr Mackereth's beliefs did fall within section 10 of the Act, the Appeal was dismissed.
It was not in dispute that Dr Mackereth's Christianity was in fact a protected characteristic under the Act. The question for the EAT was whether the specific beliefs (or lack of beliefs) fell within section 10 of the Act. Dr Mackereth's beliefs referenced at (b)(ii) and (iii) and (c) related to how society should treat those who present other than in conformity to their natal sex, as such the Tribunal had erred in finding these did not relate to weighty and substantial aspects of human life and behaviours.
The Tribunal had also erred in failing to engage with Dr Mackereth's case regarding the matters at (b) as one of lack of belief. The Tribunal was entitled to find that the matters at (b)(ii) and (iii) and (c) lacked the necessary cogency, seriousness, cohesion and importance requisite for the Grainger test. However, it had been wrong to find these were merely opinions based on the information available when the statements were extrapolations from Dr Mackereth's belief (a) and were properly to be viewed as manifestations of that belief. In addition the Tribunal had erred in its approach to the question whether the beliefs were worthy of respect in a democratic society.
The Tribunal had wrongly considered the beliefs relative to Dr Mackereth's particular employment, had erroneously assumed they must give rise to unlawful discrimination or harassment and had focused on the potential manifestation of the beliefs instead of the beliefs themselves. The threshold had been set too high; in a pluralist democratic society it is necessary 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 others) – respectfully agreeing with the EAT in the case of Forstater v CGD Europe and ors.
Despite the Tribunal's findings on belief, the Tribunal had appropriately gone on to consider Dr Mackereth's claims on the merits. The Tribunal had found as a fact that Dr Mackereth had not suffered the acts of less favourable treatment and/or harassment. The Tribunal had permissibly found that Dr Mackereth's beliefs were not the reason for respondents' conduct and it was entitled to draw a distinction between Dr Mackereth's beliefs and the way he wished to manifest those beliefs. Further, the relevant conduct did not have the purpose or effect required to amount to harassment.
With regard to the indirect discrimination claim, on the issue of group disadvantage, as Dr Mackereth had accepted that his particular beliefs were not shared by all Christians, there could be no objection to the Tribunal's conclusion in this regard. As for justification, Dr Mackereth had failed to challenge the legitimate aims relied on and the Tribunal's finding that no penalty had been applied by the respondents. The PCPs relied on were both necessary and proportionate means of achieving the legitimate aims and the Tribunal had properly taken account of the context and the respondents' concerns. The Tribunal had been entitled to find that there were sensitivities arising from the face-to-face interactions Dr Mackereth would have with service users, however it was also accepted that the respondents were seeking to accommodate Dr Mackereth's beliefs and were seeking clarity on his position.
Context was key in this case – considering the environment in which the service was being provided it could not be said that the Tribunal had erred in finding the measures adopted by the respondents were necessary and proportionate to meet a legitimate aim.
This is an interesting case where the EAT has had to balance competing interests in relation to a subject that provokes strong opinions from some. Recognising the sensitivity of the issues being decided the EAT stated: "We recognise that this case may touch on issues of wider social concern and debate. We make clear that we express no views as to the merits of any side in that debate, it is not the role of the Employment Appeal Tribunal to do so."
It is also a helpful case for employers struggling to address these conflicts in the workplace. The key message is that there is a low threshold for a belief to be protected under the Act. Shocking, offensive and even unpalatable beliefs can be protected in some circumstances, providing the rights and freedoms of others are not shattered.
However, importantly, employers do have some protection in that they can restrict the manifestation of the belief when doing so is necessary and proportionate in the pursuit of a legitimate aim.