EAT considers lack of belief in

Friday 22nd July 2022

In Mackereth v Department of Work & Pensions and anor, the EAT held that a doctor who refused to adopt the preferred pronouns of transgender service users was not discriminated against.

Dr Mackereth was responsible for carrying out assessments on behalf of the DWP for disability-related benefits. During his induction, he explained that his Evangelical Christian beliefs meant he would not use the preferred pronouns of transgender service users.

This conflicted with the Respondents’ policies, but they sought to accommodate Dr Mackereth. However, it was not possible to offer him a non-customer facing role, as this required 12 months experience and the Respondent could not guarantee that he would only be required to assess non-transgender service users.

Ultimately, Dr Mackereth left and brought proceedings relying on the protected characteristic of religion or belief, claiming direct and indirect discrimination, together with harassment.

The ET found that Dr Mackereth’s particular beliefs were not protected, having failed to satisfy the criteria laid down in case law, including that the belief must be worthy of respect in a democratic society and not conflict with the fundamental rights of others.

In the alternative, the ET found Dr Mackereth had not suffered any less favourable treatment amounting to direct discrimination or harassment. The ET also held that the DWP’s provision, criteria or practice (PCP) of using service users’ preferred pronouns and confirming a willingness to adhere to that policy, were a necessary and proportionate means of achieving its legitimate aim of ensuring that transgender service users were treated with respect and in accordance with legislation.

The EAT, however, held that Dr Mackereth’s beliefs were protected, the ET having imposed too high a threshold. It need only be established that the belief “does not have the effect of destroying the rights of others” and just because Dr Mackereth’s beliefs were likely to cause offence did not mean they should be excluded from protection.

The EAT did however, uphold the ET’s findings relating to the allegations of discrimination and harassment. Dr Mackereth had not been pressured into renouncing his belief but asked to provide clarification sought as part of DWP’s efforts to accommodate him. The ET was entitled to draw a distinction between Dr Mackereth’s beliefs and the way he chose to manifest them; any assessor not prepared to adhere to the policy would have been treated in the same manner irrespective of their beliefs.

On the indirect discrimination claim, the EAT considered the ET, having carried out a detailed assessment of the context, had been entitled to find that the PCPs were justified, particularly as no penalty had been applied to Dr Mackereth at the time of his departure.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.