The claimant, a doctor, started employment with the respondent as a health and disabilities assessor of benefits claimants. This required face-to-face assessment with claimants and a report to be subsequently written up. During induction, the claimant made it clear he had religious beliefs such that he could not agree to use the preferred pronouns as required by the respondent’s policies.

The respondent decided the claimant could not be moved into a non-customer facing role as that would require 12 months’ experience. Similarly, it would not be possible to have the claimant only examining non-transgender customers as it would not be possible to decide who is and who is not transgender before the assessment. The claimant subsequently left the employment of the respondent and brought a claim for religious discrimination and harassment. The claimant’s case was he had a biblical belief that individuals are created male or female and it cannot be changed. He also refused to be believe in ‘transgenderism’ stating it is not possible for a person to change their sex, that it would not be beneficial to ‘impersonate’ the opposite sex and society should not encourage impersonation of the opposite sex.

At first instance, the claimant’s claim was dismissed. Citing the case of Grainger v Nicholson, it was held the belief must be worthy of respect in a democratic society and not conflict with the fundamental rights of others. The Tribunal also stated the claimant had not been treated less favourably because of his religious beliefs. On the issue of indirect discrimination, it was found the policy requiring the preferred pronouns to be used could disadvantage Christians, yet it was held the policy was necessary and proportionate in achieving the legitimate aim of ensuring that transgender customers were treated with respect.

The claimant appealed to the EAT. The EAT held the Tribunal had erred in its application of the Grainger case stating too high a threshold had been imposed.  To that end, a lower threshold is required meaning that minority beliefs are protected even where they may offend others. The threshold, the EAT held, should be such that the belief does not ‘destroy’ the rights of others. The EAT did find the belief that it is irresponsible for society to encourage the ‘impersonation’ of the opposite sex did not meet the criteria in Grainger requiring the belief to be of a certain level of cogency or seriousness. Despite finding that the Tribunal had erred in the application of the Grainger criteria, the EAT still dismissed the appeal. This was on the basis the claimant had not suffered any less favourable treatment as a result of his beliefs. For example, the respondent was only at the information gathering stage when the claimant decided to leave his employment.

Practical Lessons

This case demonstrates the way in which the Tribunal/Courts will examine whether there is a belief which requires protection under the legislation. To this end, the EAT disagreed with the threshold used and affirmed the belief will not receive protection where it ‘destroys’ the protected right of another group. That use of ‘destroy’ is a relatively high threshold thus allowing for greater levels of protection. In this case, however, the issue of whether the belief was protected or not was an academic pursuit as the claimant was unable to demonstrate that he had suffered less favourable treatment due to  the belief.
https://www.gov.uk/employment-appeal-tribunal-decisions/dr-david-mackereth-v-the-department-of-work-and-pensions-1-advanced-personnel-management-group-uk-limited-2-2022-eat-99