The EAT has found in favour of the respondents in Mackereth v Department of Work and Pensions & Advanced Personnel Management Group (UK) Limited  EAT 99, Mrs Justice Eady finding that although the employment tribunal had erred in its decision in respect of protected belief, it had not erred in finding that the claimant had not in fact been discriminated against or harassed on the basis of those beliefs.
The judgment is a demonstration of the principle that whilst a belief may be a protected one, an employer is not required to accommodate or allow all manifestations of that belief in the workplace, particularly where that manifestation conflicts with its other obligations. It demonstrates the necessity of closely analysing the factual circumstances giving rise to allegations of discrimination and harassment connected to belief and an individual’s manifestation of belief.
The claimant is a Christian and a doctor who contracted with the second respondent to carry out assessments of disability-related benefit claimants as a Health and Disability Assessor, on behalf of the Department for Work and Pensions. In that role he was to comply with the DWP’s policies and would work at Birmingham’s Five Ways assessment centre. During his induction, the claimant informed the centre’s lead physician that he would not refer to transgender persons in a way inconsistent with their birth gender, which conflicted with the DWP’s Policy on Gender Reassignment.
As was in evidence at trial, an HDA might encounter a transgender person on a few occasions a year. Also in evidence were the facts that failing to refer to a transgender person in their preferred way could be detrimental to their mental health, and that transferring a transgender person from one HDA to another, upon it becoming clear that that the person was transgender, could cause offence.
Initially, the respondents considered whether they could accommodate the claimant’s position. They internally consulted, referred to ACAS and GMC guidance, and considered the sensitivity of the areas in which they worked. They considered two possible methods of accommodating the claimant: (a) giving the claimant a non-customer-facing role, or (b) ensuring the claimant only assessed non-transgender service users. Neither of those methods was practicable, due to the role requirements undertaking a non-customer-facing role, and the centre’s operational requirements and restrictions.
On 13 June 2018 a meeting was held in which the second respondent sought to clarify the claimant’s position as to his beliefs and intended actions and acknowledged the claimant’s job was at risk.
The claimant left work at 11am the next day, saying he could not complete assessments to the best of his ability due to the ongoing situation. On 15 June 2018 the claimant claimed that he had been suspended and asked for that suspension to be confirmed with written reasons. Mr Owen emailed stating that he understood the claimant left work by choice and did not feel he could return until the situation resolved.
On 18 June 2018, the claimant accepted Mr Owen’s notes of the 13 June meeting, but added in his belief, deriving from Genesis 1:27, that a person cannot change their sex/gender at will.
On 25 June 2018, Mr Owen made the following request, having consulted with the first respondent:
“… 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 that due to his faith he could not do what was required by the first respondent. Mr Owen acknowledged the email and thanked the claimant for his work. The claimant responded claiming he had been sacked.
The Claim in the ET
The claimant brought claims in the ET of direct discrimination, harassment and indirect discrimination, relying on the protected characteristic of religion or belief.
The claimant relied upon his religion of Christianity, and the following beliefs/lack of belief:
The ET’s Decision
The ET accepted that Christianity was a protected characteristic. In the ET’s view, the claimant’s beliefs did not meet the Grainger criteria, which are that:
(I) The belief must be genuinely held.
(II) It must be a belief, not an opinion or viewpoint based on the present state of information available.
(III) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(IV) It must attain a certain level of cogency, seriousness, cohesion, and importance.
(V) It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
In the ET’s view, 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).
If it were wrong as to belief the ET considered that the respondents had not directly discriminated against the claimant or harassed him on the grounds of those beliefs in any event. It held the Claimant had not suffered acts of less favourable treatment or harassment; the respondents had acted not because of his beliefs, but because they wanted to treat service users a particular way; and the respondents had not acted with the purpose or effect of having violated the claimant’s dignity or creating an adverse environment for him.
On indirect discrimination the ET accepted that two PCPs had been applied by the respondents. First, the respondents required HDAs to use service users’ preferred pronouns, and second, the respondents had required HDAs to confirm that they were willing to adhere to its policy of so doing. The ET did not consider the respondents had applied the ‘penalty’ of suspension or dismissal for non-compliance but found as fact that the respondents at the point the claimant considered the penalty had been applied, had been seeking to clarify the claimant’s position and accommodate it if it could.
However, the PCPs were justified as a proportionate means of achieving the respondents’ legitimate aims, those being “to ensure that transgender service users were treated with respect and in accordance with their rights under the EqA…” , and to fulfil its duty as a public authority to promote equal opportunities, and not discriminate. The respondents had concluded it could not accommodate the manifestation of the claimant’s beliefs. The balance, when compared with the intrusion on the claimant’s rights, fell in the respondents’ favour.
Generally, in assessing the claimant’s witness evidence, the ET considered the claimant “a poor witness whose perception of events was skewed” and whose “account should be given little weight” unless supported by documentation or another witness.
The EAT’s Judgment
The EAT held (the Honourable Mrs Justice Eady, DBE, President, giving judgment) that the ET had erred in its treatment of the claimant’s beliefs. It had:
Nevertheless, the EAT upheld the ET’s conclusions on the merits. In so doing the EAT was clear that there was “nothing in the claimant’s objection”  to the ET going on to consider the claimant’s substantive case on direct discrimination and harassment where it had decided adversely in respect of the claimant’s protected beliefs.
Discrimination and harassment
The EAT upheld the ET’s decision in respect of direct discrimination and harassment for the following reasons:
The EAT upheld the ET’s decision as to indirect discrimination for the following reasons:
As Mrs Justice Eady DBE concluded:
“…there are contexts in which the manifestation of particular beliefs will give rise to difficult questions that can only be answered by a careful appraisal of the facts of the individual case. 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.” 
Robert Moretto represented the DWP, instructed by the Government Legal Department.
This case summary was written by Sophie David.
William Meade (Senior Clerk)