The Employment Appeal Tribunal (EAT) recently handed down its decision in a case concerning Christian beliefs about sex and gender: Mackereth v DWP and others. This case is the latest in a series of decisions related to the question of whether a particular belief is protected under the Equality Act, including Casamitjana Costa v The League Against Cruel Sports, Forstater v CGD Europe, Free Miles v RVC and Page v NHS.
Notably, as in its Forstater decision, the EAT in Mackereth was at pains to acknowledge the ‘issues of wider social concern and debate’ to which the case relates, and to make clear that it ‘express(ed) no views as to the merits of any side in that debate, it is not the role of the EAT to do so’. This commentary is written in the same spirit.
Not all the claimants in the above cases were successful in showing that their belief met the criteria set out in Grainger plc v Nicholson, so that it gained protection. It is worth setting out the Grainger criteria:
i) The belief must be genuinely held.
ii) It must be a belief and not… an opinion or viewpoint based on the current 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, be not incompatible with human dignity and not conflict with the fundamental rights of others.
The EAT in Mackereth held that although the claimant’s Christianity was a protected characteristic under the Equality Act, the question was whether his particular beliefs (or lack of belief) fell within section 10 of the act. The EAT identified the beliefs in issue, before then deciding whether they were capable of amounting to a ‘philosophical belief’ under section 10. This is where the Grainger criteria come in.
The claimant believes in the truth of Genesis 1:27, that a person cannot change their sex/gender at will. He also has a lack of belief in transgenderism and does not believe that a person can change sex/gender. He also believes that it would be irresponsible and dishonest for a health professional (as he is) to accommodate/encourage a patient’s ‘impersonation’ of the opposite sex.
The issue was that the claimant would not agree to use the preferred pronouns of patients he saw in his role as a health and disabilities assessor, which was against the respondents’ policies. The respondents tried to clarify the claimant’s position, to see if his beliefs could be accommodated within the respondents’ operations. It did not suspend him, or make moves to dismiss him – it was merely investigating. The claimant left employment and brought Employment Tribunal claims for direct discrimination, harassment and indirect discrimination, which did not succeed, hence this appeal.
It is difficult to briefly summarise the EAT’s decision, because it treads a fine line and is very detailed – even the summary.
The EAT held that the ET had been wrong to find that claimant’s beliefs did not relate to weighty and substantial aspects of human life and behaviour (Grainger (iii)). However, his beliefs were held not to attain the necessary level of cogency, seriousness, cohesion and importance (Grainger (iv)) even though they were more than mere opinions (so satisfied Grainger (ii)).
As to Grainger (v), the EAT found that the ET had set too high a threshold, and held that the claimant’s beliefs were indeed worthy of respect in a democratic society and/or met the other criteria in Grainger (v). All that is needed here (as the EAT held in Forstater) is for a ‘conviction or belief… [to] not have the effect of destroying the rights of others’. So, the EAT held that the claimant’s belief in Genesis 1:27 and lack of belief in transgenderism were protected under the Equality Act.
However, the claimant’s substantive claims for direct and indirect discrimination and harassment all failed in the ET and again in the EAT. The EAT held that the respondents had not acted as they had because of the claimant’s beliefs, and that its conduct had not had the required purpose or effect to amount to harassment. These claims therefore failed due to a lack of connection between the claimant’s beliefs and the respondents’ conduct. The indirect discrimination claim also failed, because the claimant accepted that not all Christians shared his particular beliefs and had not pursued certain arguments which may have altered the ET’s decision.
The EAT agreed with the ET that the steps taken by the respondents to ensure that the assessors used the relevant preferred pronouns, and confirm that they were willing to do so, 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’. The respondents’ conduct was therefore a proportionate means of achieving a legitimate aim.
This EAT decision takes a finely drawn but not unprecedented route, holding as it does that the claimant’s beliefs were protected, but his manifestation of them – that is, that he refused to confirm a willingness to use preferred pronouns – was not protected. This is in line with the EAT decision in Forstater and other cases: even if a claimant’s beliefs are protected, that doesn’t give them carte blanche to harass or discriminate against others. As always with discrimination, tribunals should seek to balance the various competing protected characteristics of those involved.
The decision seems ripe for an appeal, especially in the current climate, and indeed the claimant’s representatives have indicated that they will be heading to the Court of Appeal. The Employment Tribunal’s substantive judgment in Forstater (see tinyurl.com/uhwwv3rr) has just been published, upholding some of Forstater’s claims, and stating that the tribunal was ‘not concerned with the issues that have been decided by the EAT, save for the fact that the tribunal, and the parties, are bound by the EAT’s judgment… that the relevant belief is protected’. The tribunal thus moved quickly on to the substantive claims regarding how Ms Forstater had been treated.
Clare Chappell is a senior solicitor at didlaw, London
