Dr David Mackereth v The Department for Work and Pensions & Anor

A belief or lack of belief relied on as a protected characteristic must be identified with precision and meet the modest threshold in section 10 of the Equality Act 2010. A lack of belief is protected irrespective of whether the Grainger criteria can sensibly be applied to it. The criterion that a belief be worthy of respect in a democratic society sets a high bar for exclusion: potential offence, or a potentially objectionable manifestation, does not itself exclude protection.

Protection of a belief does not immunise its manifestation. Direct discrimination requires that belief, rather than an objectionable manifestation, was the reason for treatment. A requirement to use service users’ preferred forms of address may be justified as a proportionate means of protecting vulnerable service users and promoting equal opportunities, after a fact-sensitive assessment of workable alternatives.

The claimant, a Christian doctor employed as a health and disabilities assessor, said that his beliefs prevented him from using the preferred pronouns, titles or styles of transgender service users. Following discussions intended to clarify whether his position could be accommodated, his engagement ended. He brought claims of direct and indirect discrimination and harassment related to religion or belief.

The Birmingham Employment Tribunal, by a judgment sent on 27 September 2019, dismissed the claims. It held that the claimant’s specific beliefs did not satisfy the Grainger criteria and, alternatively, rejected the substantive claims. It found that the relevant provisions, criteria and practices were justified. The claimant appealed, principally challenging the approach to protected belief and the alternative findings.

1. Appeal dismissed. The Employment Tribunal erred in parts of its analysis of whether the claimant’s beliefs or lack of belief fell within section 10 of the Equality Act 2010, but its alternative findings on the merits sustained dismissal of every claim.
2. The Tribunal was entitled to focus on the particular beliefs pleaded rather than Christianity generally. A religious source does not itself make every associated belief protected. However, the statements concerning how society should treat persons presenting other than in accordance with natal sex concerned a weighty and substantial aspect of human life and behaviour. The Tribunal also erred by treating the lack of belief in transgenderism as necessarily a positive opposing belief, and by treating certain statements as opinions based on current information rather than as manifestations of the belief in Genesis 1:27.
3. The Tribunal was entitled to find that the narrowly framed positive beliefs at issue lacked the cogency, seriousness, cohesion and importance required by Grainger criterion (iv) when considered in isolation. It erred on criterion (v). The question concerns the belief, not a possible manifestation in a particular workplace. Potential offence or possible harassment does not put a belief outside protection; exclusion requires a belief of the gravity envisaged by article 17 of the ECHR.
4. The alternative findings on direct discrimination and harassment were unaffected. The Tribunal permissibly found that the alleged interrogation, suspension, pressure to renounce belief and dismissal had not occurred as alleged. The respondents’ reason for seeking clarification was to ensure service users were addressed in their preferred manner, not the claimant’s beliefs. It could distinguish belief from the proposed manifestation. The conduct had neither the prohibited purpose nor the requisite effect under section 26.
5. For indirect discrimination, the Tribunal permissibly found group disadvantage only among persons sharing the specific beliefs. The applied requirements to use preferred pronouns and confirm willingness to do so pursued legitimate aims. The Tribunal carefully assessed alternatives and was entitled to find none workable in the face-to-face assessment setting. Its reference to the claimant identifying no further alternative did not reverse the burden of justification. The resulting interference was limited because no suspension or dismissal penalty had been applied and the respondents had sought accommodation.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 99.
• Birmingham Employment Tribunal: judgment sent on 27 September 2019 dismissing claims of direct and indirect religion or belief discrimination and harassment.