Mackereth v DWP (UK) Ltd – Equality Act: protecting beliefs

The Employment Appeal Tribunal has held that whilst a Christian doctor’s beliefs about transgenderism would be protected by the Equality Act 2010 (EqA), this protection did not include expressing those views whilst at work.

Case Facts

The claimant worked as a health and disabilities assessor for DWP, via an agency, from 29 May to 27 June 2018. His role involved conducting face-to-face assessments and preparing reports. Each assessment lasted 30-40 mins on first come basis.

Sometimes, service users completed an online benefits claim, but not always. If a mental health condition was the basis for the claim, they were not required to complete the form in advance. The effect of this is that the assessor would not know any information on the service user prior to meeting with them.  

Assessors had to adhere to DWP’s policies and procedures, including its diversity and equality policy. Specifically, that transgender service users should be treated with respect and referred to in their presented gender at all times. Assessors were told to try to use the person’s name where possible rather than referring to their gender, and to use whatever pronoun they prefer.

DWP highlighted that if a trans service user was not acknowledged in their preferred way, it could be detrimental to their mental health and cause offence. This would cause reputational damage to DWP.

As part of induction training, all new starters were made aware of the Policy on Gender Reassignment which must be followed. Mackereth stated that, as a Christian, he could not use pronouns “in that way, in good conscience.” This belief was based on what the bible says in Genesis 1:27; that we are born male and female and that a person cannot change their sex or gender.

He said that the hospital he’d previously worked in as an A&E doctor were aware of his beliefs and helped him avoid having to deal with transgender people.

DWP considered whether they could accommodate his beliefs in a similar way. They identified two potential means but found both to be inappropriate and impracticable.

These were:

  1. Give him a non-customer facing role: these required at least 12 months’ experience.
  2. Ensure he only assessed non-trans users: impracticable since they might not know they’re trans until the assessment.

DWP raised the issue with the agency, who met with Mackereth. His version of events were that he was called out of work for an urgent meeting to investigate his beliefs whilst he was working on his “second real case”. The ET found that his version of events were skewed and that he was a poor witness whose account should be given little weight.

The meeting was purely for information gathering, but there was a risk he could lose his job. The agency explained that no decision was made and that it would be up to DWP to decide.

The next day, Mackereth said he was going to leave at 11am because he was distracted and may do service users an injustice as a result. The agency sent a follow up email to confirm he didn’t want to work until the situation was resolved. However, later on Mackereth was to claim that he had been suspended and asked for reasons for this.  

The agency emailed asking “one final time” whether he would follow the agreed process as discussed in training and refer to customers by their chosen pronouns. They ended that “If however, you do not wish to do this, we will respect your decision and your right to leave the contract.” Mackereth responded saying ““I am a Christian, and in good conscience I cannot do what they are requiring of me.”

The agency wrote back acknowledging his email and that he would not be able to perform the assessor role. They thanked him for his work and wished him the best for the future. Mackereth then stated that he had not resigned but had been sacked. He did not seek to raise an appeal or grievance.

Tribunal

The ET ruled that that the claimant’s belief was not a protected belief under the EqA, since it was not worthy of respect in a democratic society (according to the Grainger case) and was incompatible with human dignity and conflicted with the fundamental rights of others.

The ET held that that he was not subject to direct discrimination, indirect discrimination or harassment.

Employment Appeal Tribunal

Belief

The EAT disagreed with the findings of the ET in relation to the protection of the EqA. In relation to the belief, or in this case the lack of belief, in transgenderism and gender fluidity, the EAT held that this would be protected by the EqA, regardless of the Grainger criteria.

It was felt by the EAT that the ET had placed too high a threshold for the protection of belief, and the ET was wrong to say that the claimant’s beliefs conflicted with the fundamental rights transgender individuals. Instead, the EAT held all that needed to be established was that it did not have the effect of destroying with the rights of others.

The beliefs of the claimant came from a single source and showed a concern for human dignity. As such, the EAT argued it is not possible uphold one aspect of the belief, and the other.

However, although his beliefs had a concern for human dignity and were derived from a single philosophical source; it was an error for the ET to find that one aspect of that belief, but not another, met the requirements.

Direct discrimination and harassment

The EAT dismissed this claim as they rejected the claimant’s evidence that he was called out of work, interrogated and suspended because of his beliefs. He was spoken to, as part of investigations by the employer into the issues. He was also, as was alleged, not pressured to renounce his faith, only to explain his position further.

It was accepted that the conduct was related to the claimant’s beliefs, but this was acceptable in order to treat the service users in the manner they prefer, and would have been applied to all workers, regardless of religion or belief.

Indirect discrimination

The position of the ET was that the respondent’s actions were necessary and proportionate in order to achieve a legitimate aim. In this case, that aim was to protect the needs of service users, who were potentially vulnerable, and ensure they were not faced with behaviour that was harmful to them.

Notes for Employers

Andrea Williams, chief executive of The Christian Legal Centre, which supported Mackereth, summarised the effect of this case in the following way: “The way in which the judge has driven a wedge between holding a belief and manifesting it means these basic Christian beliefs are protected on paper but not in practice. The freedom to hold a belief, but not be able to express it, is no freedom at all.”

The outcome of this case shows us that whilst the law recognises that beliefs such as the claimant’s exist, and should be protected, acting on those beliefs is not permissible where it has the effect of ‘destroying the rights of others’. Employers must therefore make a judgement when faced with a similar issue, as to the impact of the behaviour and the resulting damage to others, before deciding on what action to take.

The claimant has indicated that he intends to appeal to the Court of Appeal on this matter, so further examination of this by the courts is a possibility.

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