In Mackereth v Department for Work and Pensions (DWP) and ors, the EAT held that although Mr Mackereth’s particular Christian beliefs and a lack of belief in transgenderism were protected under the Equality Act 2010, he had not been discriminated against because of those beliefs. Nor had he been indirectly discriminated against by the employer’s diversity and equality policy.
Mr Mackereth, a doctor, started work as a health and disabilities assessor for the DWP, which involved assessing claimants for disability-related benefits, including face-to-face assessments. Generally, claimants completed an online form, but those with mental health issues were not required to complete a form. As transgender claimants were more likely to suffer a mental health impairment, they were less likely to complete an online claim form.
As a strict Christian who believed in the truth of Genesis 1:27 “that God created man in His own image”, Mr Mackereth believed that people cannot change their sex/gender at will. He also had a lack of belief in transgenderism and a conscientious objection to it. At his induction course, he made clear that he would not use the preferred pronouns of transgender service users, a clear breach of the DWP’s policy which provided that employees “should always address the customer in their presented sex”.
As it ultimately proved impossible for the DWP to accommodate his beliefs, Mr Mackereth left his employment and brought proceedings to the tribunal, relying on the protected characteristic of religion or belief to claim direct discrimination, harassment and indirect discrimination.
Under section 4 of the Equality Act 2010, religion or belief is a protected characteristic. Belief is further defined in section 10 as “any religious or philosophical belief and a reference to a belief includes a lack of belief”. A philosophical belief is not defined, but the test for determining it was set out in the case of Grainger plc v Nicholson (weekly LELR 147).
Although it accepted that Christianity was a protected characteristic under the Equality Act, the tribunal found that Mr Mackereth’s particular beliefs did not meet a number of the criteria set out in Grainger.
In particular, it found that his literal belief in Genesis 1:27, his lack of belief in transgenderism, and his conscientious objection to transgenderism amounted to a viewpoint rather than a belief, was not weighty and substantial, was incompatible with human dignity and conflicted with the fundamental rights of others, specifically transgender individuals. The tribunal went on to hold that even if his beliefs did amount to a protected characteristic for the purposes of the Equality Act, Mr Mackereth had not suffered direct discrimination or harassment.
With regard to his claim of indirect discrimination, the tribunal agreed that the DWP had applied a provision, criterion or practice (PCP) whereby employees had to use the preferred pronouns of service users and confirm a willingness to adhere to that policy. However, it then went on to hold that this was a necessary and proportionate means of achieving their legitimate aim, which was to ensure that transgender service users were treated with respect and provided with a service that promoted equal opportunities.
Dismissing the appeal, the EAT held that the tribunal was wrong to conclude that Mr Mackereth’s belief in Genesis 1:27 did not amount to a protected characteristic. Applying the principles in Forstater v CGD Europe and ors (weekly LELR 730), the EAT held that the fact that his beliefs might cause offence did not mean they were not protected under the law. The tribunal had also committed an error by applying the Grainger test to his lack of belief.
Nevertheless, the EAT held that the tribunal was right to find he had not been directly discriminated against on the facts. As regards his claim for indirect discrimination, the EAT held that the PCPs were justified. In particular, they were limited to health and disability assessors and were necessary and proportionate given the potentially increased adverse effect on vulnerable service users.
The case confirms that a tribunal does not have to apply the Grainger criteria when determining if a lack of belief is protected under the Equality Act 2010. This may make it easier for workers to establish they are protected under the Act.