Mackereth v Department for Work and Pensions & Anor

EAT, Eady J, Mr D Bleiman and Mr D G Smith, [2022] EAT 99, 29 June 2022

The claimant, a doctor and former full-time evangelist, was engaged as a health and disabilities assessor (DAD) by the second defendant which provided services for the DWP. The role involved assessing individuals who applied for disability-related benefits, including in face-to-face interviews. Whereas the DWP’s policy was to refer to transgender people by their preferred names and titles, the claimant promptly objected to speaking to or about people other than in terms consist with their sex registered at birth. He was dismissed after a month and complained that he had been subject to harassment, direct and indirect discrimination because of his religious and/or philosophical beliefs.

The characterised his beliefs as follows:

  • a belief that “every person was created by God as either male or female and could not change their sex/gender: any attempt to do so would have been ‘pointless, self-destructive, and sinful’”,
  • a lack of belief in transgenderism. In particular, a lack of belief (a) that it was possible for a person to change their sex/gender, (b) that impersonating the opposite sex might be beneficial for an individual’s welfare, and/or (c) that society should accommodate and/or encourage anyone’s impersonation of the opposite sex.
  • a conscientious objection to transgenderism, also described as a belief that it would be irresponsible and dishonest for eg a health professional to accommodate and/or encourage a patient’s ‘impersonation’ of the opposite sex.

An employment tribunal accepted, applying Grainger plc v Nicholson [2010] ICR 360, that the claimant’s beliefs were genuinely held (Grainger (i)). It further accepted that beliefs 1 and 2(a) met the second, third and fourth Grainger requirements (that is, they were beliefs rather than opinions or viewpoints based on the present state of information available, concerned weighty and substantial aspect of human life and behaviour and attained a certain level of cogency, seriousness, cohesion and importance), though it ruled that beliefs 2(b) and (c) and 3 failed these tests. It went on to rule that none of the claimant’s beliefs met the fifth Grainger condition of being worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The EAT refused the claimant’s appeal. It ruled that all the beliefs upon which the claimant relied satisfied Grainger criteria (i), (ii) and (iii), though the tribunal had been entitled to rule that beliefs 2(b) and (c) and 3 failed Grainger (iv). The tribunal had also erred in its application of Grainger (v) which (as the EAT had ruled in Forstater v CGD Europe [2022] ICR 1 excluded only those beliefs which would have been inconsistent with Article 17 ECHR. It was, however, clear on the tribunal’s findings of facts that the claimant had not (contrary to his claim) been suspended or otherwise pressurised to renounce his beliefs , and that he had been dismissed because he was not prepared to refer to transgender service users in the manner required by the DWP, rather than because of his beliefs as such. This being the case, he had not been subject to discrimination. Nor did his employer’s attempt to discuss the issue with him amount to harassment. Finally, the tribunal had been entitled to dismiss his indirect discrimination claim because the PCP which had been applied (requiring assessors to use service users’ preferred pronouns) served the legitimate aims of treating service users with respect and promoting equal opportunities, and was necessary and proportionate to those aims in view of the facts that people undergoing assessment were not attending by choice and that those with mental health vulnerabilities  which they attributed to past discrimination might well take offence by a failure to respect their pronouns, and the impracticability of accommodating the claimant’s beliefs by permitting him to avoid assessing transgender service users.

Appellant: Michael Phillips, instructed by Andrew Storch, Solicitors

Respondents: Robert Moretto, instructed by GLD; Rad Kohanzad, instructed by Croner Group Ltd


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