MACKERETH v DWP [2022] EAT 99
Dr Mackareth brought a claim against DWP for discrimination and harassment based on his beliefs (including a lack of belief in ‘trangenderism’). The Employment Appeal Tribunal (EAT) recently held that his claim remained dismissed and that he had not been discriminated against on the basis of his beliefs.
Background
The claimant is a doctor who applied to work as a health and disabilities assessor (HDA) at the first respondent’s assessment centre at Five Ways, Birmingham. That role would require him to assess claimants for disability-related benefits; his duties would include conducting face-to-face assessments and preparing reports. The claimant explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users.
Essentially, the Respondents’ request was that the claimant respect the chosen gender, pronouns and sexuality of people using the service, as per the General Medical Council’s (GMC) guidelines and as expressed in an email from Mr Owen (of the Respondent) to the claimant on 25 June 2018:
“… on behalf of [the first respondent] we would like to ask you one final time whether you would follow the agreed process as discussed in your training and that in any assessment you conduct, that you refer to the customer by their chosen sexuality and name? We are of course happy to provide help and support on this. If however you do not wish to do this, we will respect your decision and your right to leave the contract.”
The claimant responded explaining his position that:
“I am a Christian, and in good conscience I cannot do what the [first respondent] are requiring of me.”
The claimant refused to call transgender people by their preferred pronoun or gender.
On 27 June 2018, Mr Owen wrote to the claimant acknowledging his email and that he would not be able to perform as an HDA with the second respondent on behalf of the first respondent. He thanked the claimant for his work and wished him the best for the future. The claimant responded to Mr Owen, stating that he had not resigned but had been sacked and commenting on what he considered the consequences of that were for the nation. He did not seek to raise an appeal or grievance.
Belief
The claimant is a Christian. It was common ground before the ET that Christianity is a protected characteristic.
However, in addition he also holds the following beliefs or lack of belief:
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 (“belief in Genesis 1:27”);
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” (together, “lack of belief in transgenderism”) and,
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 (“conscientious objection to transgenderism”).
Having started employment as an HDA, 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.
It was the evidence of Mrs Harrison, clinical lead at the Five Ways assessment centre, that if a transgender claimant was not acknowledged in their preferred way, by using their preferred pronoun and title, that could be detrimental to their mental health. It was also the evidence of Dr Ahmed, clinical lead on the induction training for HDAs, that transgender claimants were often unhappy about the way society had treated them and he considered that if one HDA sought to pass a service user to another HDA, having discovered that person was transgender, then, however sensitively this was handled, the service user would be offended because they would see this as demonstrating the same lack of understanding with which they felt they had been treated by society. A specific example was provided by Mrs Harrison relating to a transgender service user the previous year, whose gender history had been incorrectly relayed and to whom an apology had been provided. (para 11).
Employment Tribunal Decision
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) to fall under s.10 Equality Act 2010 (EqA):
- beliefs (b)(ii) and (iii) and (c) did not meet Grainger (ii), (iii) and (iv) and
- none of the claimant’s beliefs (a)-(c) satisfied Grainger (v).
Even if his beliefs did amount to a protected characteristic for the purposes of the Equality Act 2010 (EqA), however, the ET went on to find, in the alternative, that he had not suffered the acts of less favourable treatment/harassment complained of and that he had not suffered direct discrimination or harassment.
The ET further held that the provisions, criteria and practices (PCPs) applied (to use service users’ preferred pronouns and to confirm a willingness to adhere to that policy) were necessary and proportionate means of achieving the respondents’ legitimate aims (to ensure 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). The claimant appealed.
Employment Appeal Tribunal (EAT) Decision
The new president of the tribunal, the honourable Mrs Justice Eady DBE, sitting with panel members, dismissed the appeal.
It was not in dispute that the claimant’s Christianity was a protected characteristic under the EqA but his case depended upon his demonstrating that his specific beliefs, or lack of belief, (a)-(c) fell within section 10 EqA; the ET did not err in focusing on the case before it.
Given that the claimant’s statements of belief at (b)(ii) and (iii) and (c) related to how society should treat those who present other than in conformity to their natal sex, the ET had erred in finding these did not relate to weighty and substantial aspects of human life and behaviour (Grainger (iii)).
It had also erred in failing to engage with the claimant’s case regarding the matters at (b) as one of lack of belief, which would fall to be protected under the EqA irrespective of the Grainger criteria (Forstater paragraph 106 applied).
In any event, the progressively narrow way the claimant’s beliefs were defined meant the ET was entitled to find that the matters at (b)(ii) and (iii) and (c) lacked the necessary cogency, seriousness, cohesion and importance for Grainger (iv), although it had been wrong to find these were merely opinions based on the information available (Grainger (ii)) when the statements were extrapolations from the claimant’s belief (a) and were properly to be viewed as manifestations of that belief.
This means that the EAT agreed that matters at (b)(ii) and (iii) and (c) – notably, that (b)(ii) “impersonating” the opposite sex may be beneficial for a person’s welfare (b)(iii) society should accommodate/encourage such “impersonation” and (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 – failed to pass Grainger (iv) and were thus not protected beliefs.
More generally, the ET had erred in its approach to the question of whether the beliefs were worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others (Grainger (v)): the ET had wrongly considered the claimant’s beliefs relative to his particular employment; had erroneously assumed they must give rise to unlawful discrimination or harassment; had focused on the potential manifestation of the claimant’s beliefs instead of the beliefs themselves, and had applied too high a threshold (Forstater applied).
Notwithstanding its findings on belief, in the alternative, the ET had appropriately gone on to consider each of the claimant’s claims on the merits; those alternative findings were not tainted by the ET’s approach to the question of philosophical belief. The claimant’s grounds of appeal had not included any separate points of challenge to the ET’s rejection of his claims of direct discrimination and harassment but he had impermissibly sought to take objections to the ET’s conclusions on these claims in argument. Those objections were, in any event, without merit:
(1) the ET had found as a fact that the claimant had not suffered the acts of less favourable treatment/harassment complained of;
(2) it had permissibly found the claimant’s beliefs were not the reason for the respondents’ conduct;
(3) it had been entitled to draw a distinction between the claimant’s beliefs and the way he wished to manifest those beliefs (Page v NHS applied); and
(4) it was satisfied that the relevant conduct had neither the purpose nor effect required to amount to harassment under section 26 EqA.
As for the ET’s findings on indirect discrimination, on the issue of group disadvantage, as the claimant had accepted that his particular beliefs were not shared by all Christians, there could be no objection to the ET’s conclusion in this regard.
On justification, the claimant had neither challenged the ET’s finding that no penalty had been applied by the respondents (the claimant’s third PCP), nor its acceptance of the legitimate aims relied on.
In finding that the PCPs that had been applied were necessary and proportionate means of achieving those aims, the ET had properly taken account of the relevant context and had carefully evaluated the respondents’ concerns; it had been entitled to find there were particular sensitivities arising from the face-to-face interactions the claimant would have with service users as part of his role but had also accepted that the respondents were seeking to clarify the claimant’s position and to accommodate his beliefs.
In finding, however, that there were no practical options that would allow for the claimant’s manifestation of his beliefs in his role in that workplace, the ET noted that no further alternatives had been identified by the claimant. That did not amount to the imposition of a burden of proof on the claimant, the ET was merely identifying the lack of evidential challenge to the respondents’ case (paragraph 47 Essop v Home Office applied) and the claimant could not avoid that difficulty by seeking to reinstate on appeal a point he had not pursued before the ET.
More generally, the ET did not lose sight of the potential impact of the PCPs on the claimant but was entitled to keep in mind the limited nature of the intrusion (no penalty having been applied by the respondents, who were seeking to accommodate the claimant).
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.
Comment
Crucially, none of the treatment by the Respondents was because of these beliefs. A finding of gender critical belief as protected does not necessarily mean a tribunal will find that the treatment was because of that belief (for direct discrimination and harassment), see paras 124-128.
On the matter of indirect discrimination, this was also unsuccessful for the claimant. The trans users of the service were taken into account when considering proportionality:
“138…Critically evaluating the reasoning in this case (as we are required to do), we cannot see that the ET erred in concluding that 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. That was a conclusion reached by the ET after considering both the evidence adduced by the claimant relating to the views of Christians more generally (the publications from the Evangelical Alliance and the Christian Medical Fellowship) and the guidance provided by the GMC (see the references at paragraphs 38 and 42 above). Having regard to the particular factual context, this is not a case where it can be said that the balance struck by the ET was wrong. We accordingly dismiss the appeal against the ET’s finding on indirect discrimination.”
It is a shame that ‘lack of belief in transgenderism’ seems to have been held to pass the Grainger criteria when, for example, in Elan-Cane it was restated that one’s gender identity remains central to their Article 8 Convention rights (see para 36 of that judgment). How then a lack of belief in transgenderism cannot come into conflict with a transgender person’s identity and Article 8 rights seems inconceivable.
A note on the Forstater discussion
This judgment heavily cites Forstater, which ruled on solely belief (and not manifestation), whereas this judgment deals with both belief and manifestation (i.e. how trans people are treated generally).
The discussion of Forstater underlines how strange that ruling was, and how the divorce between belief and manifestation can be incredibly artificial.
The EAT in Forstater attempted to disentangle belief (as protected) from manifestation (which may not be). However, it then draws on R (Williamson) as set out by the EAT in this case:
“83. Further, referring back to Burton P’s reliance on paragraph 23 R (Williamson) in the formulation of the Grainger criteria, the EAT in Forstater noted that, in considering what beliefs might fall outside the protection of article 9, Lord Nicholls had opined that “Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection,”. The EAT reasoned:
“61. The reference there to a belief involving ‘torture or inhuman punishment’ is consistent with the principle that only the gravest violations of Convention principles should be denied protection. Such violations go far beyond what might be regarded as potentially justifiable interference with a right: they seek to destroy such rights.”
[…]
“77. … at this preliminary stage of assessing whether the belief even qualifies for protection, manifestation can be no more than a part of the analysis (assuming that there is any manifestation at all) and should be considered only in determining whether the belief meets the threshold requirements in general. It is also right to note that an approach that places the focus on manifestation might lead the Tribunal to consider whether a particular expression or mode of expression of the belief is protected, rather than concentrating on the belief in general and assessing whether it meets the Grainger criteria.
78. That approach follows from the language of s.10, EqA which, as we have said, is concerned only with whether a person has the protected characteristic by being of the religion or belief in question, and not with whether a person does anything pursuant to that religion or belief.” […]
87. The EAT subsequently returned to this point, postulating a belief that would be likely to fall outside Grainger (v) (with which Ms Forstater’s belief was not comparable):
“100. Some beliefs, for example a belief that all non-white people should be forcibly deported for the good of the nation, are such that any manifestation of them would be highly likely to espouse hatred and incitement to violence. In such cases, it would be open to the Tribunal to say that the belief fails to satisfy Grainger V. However, the rationale for doing so would be that it is the kind of case to which Article 17 might be applied because of the inevitability that the rights of others would be destroyed. The Claimant’s belief is not comparable.””
Part of the fallacy here is that Ms Forstater’s alleged protected belief was that ‘sex is immutable’. However, in reality the belief goes further than that and seeks to, it seems, erase trans rights. The belief should really have read something like ‘sex is immutable and trans people do not/should not exist’.
The manifestation of Forstater’s views were seen in various tweets and could be said on one view to incite hatred/violence, directly or indirectly, towards trans people. In such a way, the manifestation of her views are similar to the xenophobic views cited at para 100 above – i.e. a belief that all non-white people should be forcibly deported for the good of the nation would not satisfy Grainger V, nor would a belief in the erasure of trans people.
It is unfortunate that the EAT in Forstater allowed the truncated version of Forstater’s belief ‘sex is immutable’ to be put in a theoretical bubble without realising what the subtext of that belief is, and indeed its material reality/manifestation, whereby trans people are disbelieved or harassed on a daily basis.
The judgment in Mackereth, however, sets out the law in a fairly unsurprising way. Even if a person has ‘gender critical’ beliefs, it must be shown they were treated because of these beliefs but more importantly if these beliefs have a manifestation that is harmful to trans people, then it is unlikely for a ‘gender critical’ claimant to be successful.
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[1] (a) his belief in Genesis 1:27 did not amount to a protected characteristic for the purpose of sections 4 and 10 EqA; and the claimant’s lack of belief (b)(i) that it is possible for a person to change their sex/gender at will [2] (b)(ii) “impersonating” the opposite sex may be beneficial for a person’s welfare (b)(iii) society should accommodate/encourage such “impersonation” and (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.