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20/07/2022

Mackereth v Department of Work and Pensions & Advanced Personnel Management Group (UK) Limited [2022] EAT 99

News

The EAT has found in favour of the respondents in Mackereth v Department of Work and Pensions & Advanced Personnel Management Group (UK) Limited [2022] 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 Facts:

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:

  • A belief 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;
  • A lack of belief in ‘transgenderism’ and ‘gender fluidity’, such that he did not believe that
    • A person can change sex/gender;
    • That “impersonating” the opposite sex may be beneficial for a person’s welfare; or
    • That society should accommodate/encourage such “impersonation”; and
  • That it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex.

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…” [140], 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

Belief

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:

  • Erred in finding that beliefs (b)(ii) and (iii) and (c) did not relate to weighty and substantial aspects of human life and behaviour, given that they related to how society should treat those who presented other than in conformity to natal sex.
  • Not erred in finding that beliefs (b)(ii) and (iii) and (c) lacked the necessary cogency, seriousness, cohesion and importance, given their narrow definition, but had been wrong to find they were merely opinions based on information available, given they were properly viewed as manifestations of the belief at (a).
  • Erred in its approach to considering whether the beliefs generally were worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others, because the ET had applied too high a threshold in so deciding, and had wrongly considered the claimant’s beliefs relative to his particular employment, that they must give rise to unlawful discrimination/harassment, and focused on the potential manifestation of the claimant’s beliefs instead of the beliefs themselves.
  • Erred in respect of (b)(i) in finding that the claimant’s lack of belief (i.e. that it is possible for a person to change their sex/gender) fell to be considered against the Grainger criteria at all.

Merits

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” [122] 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:

  1. The claimant had failed to engage with the ET’s findings of fact to the effect that the claimant had not been treated unfavourably, in that it had found:
  • The claimant was not called out of his work on 13 June 2018 and interrogated about beliefs, contrary to the claimant’s view of that meeting, which, in any event, the ET had found to be unreliable;
  • The claimant was not suspended upon his departure from work on 14 June 2018 when he asked to be excused from providing assessments, and the lead clinician had sought to persuade him to stay at work;
  • Asking the claimant if he would refer to users by their chosen sexuality and name did not amount to ‘pressuring’ the claimant to renounce his beliefs but was merely asking him to clarify his position (and indeed, the ET held there was no way that Mr Owen could have been considered to have attempted “to persuade [the claimant] to renounce his beliefs”); and
  • The respondents by their letter of 27 June were information gathering via Mr Owen, and had not made a final decision.
  1. The ET had considered the reason the respondents had sought to clarify the claimant’s position was not because of the claimant’s beliefs, but because the respondents wanted to treat service users in the manner of their choosing. Therefore, it was not a discriminatory act.
  2. The ET considered the respondents had not treated the claimant any differently than it would any other HDA unprepared to refer to service users in the manner of their choosing. The EAT held that that decision drew a permissible distinction between the claimant’s beliefs, and the way in which he manifested those beliefs, which meant his claim of direct discrimination had to fail.
  3. The claimant accepted that it was right that the respondents sought to address the issues arising out of his refusal to refer to service users in their chosen manner with him. Therefore, the ET’s finding, that the unwanted conduct related to belief had neither the requisite section 26 EqA purpose or effect of violating dignity or creating an adverse environment, “cannot be open to challenge.” [127]

Indirect discrimination

The EAT upheld the ET’s decision as to indirect discrimination for the following reasons:

  1. The claimant’s factual challenge to the ET’s approach to the question of group disadvantage was not well-founded, the ET having had regard to the materials relied on by the claimant in respect of Christian Medical Practitioners and Evangelical Christians, and having concluded that these made clear that Christian views differed on the matters in issue. “The claimant may disagree with that reading… but we cannot say that it was a perverse interpretation”. Further, “the ET found group disadvantage to be made out.”
  2. The ET had not erred in its approach to proportionality:
    • First, whilst accepting that the respondents had applied the PCPs of requiring that HDAs use preferred pronouns, and confirm their willingness to do so, the ET had made a permissible finding of fact in holding the respondents had not imposed a penalty of suspension or dismissal to those who did not comply with the requirement to use preferred pronouns.
    • The claimant had not challenged that the respondents had established its legitimate aims, and it was apparent that the ET had undertaken a detailed assessment when analysing whether the PCPs were necessary and proportionate means of achieving them. It had not simply accepted that the risks identified by the claimant which might arise in respect of transgender users would in fact arise. Instead, it carried out a careful evaluation of those concerns. [135] The ET had permissibly accepted that there would be difficulties in identifying whether a service user was within the protected category without either breaching the respondents’ legal obligations/damaging its reputation or causing offence or harm to the service user was permissible.
    • Further, in assessing proportionality the ET had specifically considered that there were relatively few occasions when this issue might arise, as well as how the respondents could have accommodated the way in which the claimant sought to manifest his beliefs in his workplace. It had been permissible to accept the R’s evidence as to impracticability of alternatives to the claimant assessing transgender service users, and had not, by noting that the claimant had been unable to identify any alternatives, imposed a burden of proof upon him. There was simply no evidential challenge to the respondents’ case (Essop v Home Office, para 47 applied).
    • The ET had not lost sight of the impact of the PCPs in issue, whether on the claimant or on other medical practitioners holding the same beliefs. It was entitled to also keep in mind the limited nature of the intrusion on the claimant’s rights, given its finding the respondents had not imposed the penalty of suspension on him.

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.” [138]

Robert Moretto represented the DWP, instructed by the Government Legal Department.

This case summary was written by Sophie David.

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