Healthcare-workers and transgender clients: Mackereth in the EAT

Background

Dr David Mackereth had been recruited by Advanced Personnel Management Group as a Health and Disabilities Assessor on behalf of the DWP. He was contracted to assess individuals for disability-related benefits, some of whom were contemplating, undergoing or had undergone gender reassignment. However, he believed in the truth of Genesis 1:27 – that “male and female He created them” – and, therefore, that a person could not change his or her sex/gender at will and 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.

Because of those beliefs, he refused as a matter of conscience to refer to clients using the pronoun of their choice – which was what the DWP required him to do. It later became apparent the issue also extended to styles and titles of address. He was suspended and, ultimately, sacked. An Employment Tribunal rejected his claim for direct discrimination and harassment: we noted the judgment here.

He appealed, and in Mackereth v Department for Work and Pensions & Anor [2022] EAT 99 he was equally unsuccessful.

The judgment

It was common ground before the ET that Christianity was a protected characteristic, but the respondents did not accept that that protection applied to the further matters relied on by Dr Mackereth: belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism [35]. The ET had concluded that all beliefs three failed the test in Grainger plc v Nicholson [2010] ICR 360 EAT [36].

The EAT noted the conclusions of the tribunal in Forstater v CGD Europe [2022] ICR 1, which had summarised the key principles that might be derived from the case-law of the ECtHR. Focusing specifically on Article 9 ECHR and the right to freedom of religion and belief, the EAT set out those principles “in précis form” as follows:

“(1) In assessing any belief, it is not for the court to inquire into its validity: ‘Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising.’ per Lord Nicholls at paragraph 22 R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, HL. That said, when issues of manifestation arise, ‘a belief must satisfy some modest, objective minimum requirements’ per Lord Nicholls at paragraph 23 R (Williamson); those requirements we take to be as set out in the five-stage test identified in Grainger.

(2) Freedom to hold any particular belief goes hand-in-hand with the State remaining neutral as between competing beliefs, refraining from expressing any judgement as to whether a particular belief is more acceptable than another, and ensuring that groups opposed to one another tolerate each other; Eweida v UK  [2013] 57 EHRR 8 paragraph 81, Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 13 at paragraphs 115 and 116.

(3) A belief that has the protection of Article 9 ECHR is one that only needs to satisfy very modest threshold requirements and, as stated by Lord Nicholls at paragraph 23 R (Williamson), those threshold requirements ‘should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention’; the bar should not be set too high, see Harron v Chief Constable of Dorset Police [2016] IRLR 481, EAT at paragraph 34.”

On the issue of religion or belief, there was no dispute that Christian belief was a protected characteristic, but Dr Mackereth had not complained about how he was treated as a Christian but about how he was treated because of his holding (or not holding) certain more narrowly defined beliefs – which it the ET had found fell outside the ambit of section 10 Equality Act 2010.  His case had depended on the particular beliefs on which he had relied, rather than on his Christianity more generally, “and, as he accepted, not all individuals who describe themselves as Christian would hold those beliefs” [107].  The ET had not erred in its focus on what was at issue in the case before it.  Further:

“as the case-law makes clear, a belief does not gain protection merely by virtue of its being a religious belief; whether considered under the ECHR or the Equality Act, the belief must still meet the modest threshold requirements for protection” [107].

The EAT found that the ET had erred in finding that Dr Mackereth’s belief in Genesis 1:27 did not amount to a protected characteristic for the purpose of ss 4 and 10 Equality Act and, likewise, his lack of belief that it is possible for a person to change his or her sex/gender at will [118]. Nevertheless, in that particular context it could not be said that the ET had erred in finding 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]. Appeal dismissed [138].

Update

According to an article in Personnel Today, Dr Mackereth said that he would take his case to the Court of Appeal.

Cite this article as: Frank Cranmer, "Healthcare-workers and transgender clients: Mackereth in the EAT" in Law & Religion UK, 30 June 2022, https://lawandreligionuk.com/2022/06/30/healthcare-workers-and-transgender-clients-mackereth-in-the-eat/

1 thought on “Healthcare-workers and transgender clients: Mackereth in the EAT

  1. I note that the EAT’s judgment uses the word “erred” twenty times, of the ET.

    With respect, this report of Frank’s doesn’t mention the main reason why the appeal failed, which had to do with Grainger (iv), which provides that a belief, to be protected, must have a “certain level” of “cogency, seriousness, cohesion and importance”, which Dr Mackereth’s commonplace beliefs were said to lack. (Grainger doesn’t define what “certain level” of these attributes is required, so it remains an uncertain level.)

    The Grainger judgment itself at paragraph 10 quotes the A-G, Baroness Scotland, speaking in a debate about removing the word “similar” from a section of the Act, a use made of Parliamentary time lest humanists discriminated against might be offended by having to argue in court that their particular brand of humanism was similar to a religion. She said:

    “… an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights [a reference to a Camelot-style Order in the cult film Star Wars]. I hope that this provides some assurance on the change of the definitions of ‘religion or belief’ that we have adopted …”

    Apparently, Mrs Eady J and Messrs Bleiman & Smith think that Dr Mackereth’s beliefs (which I share) that sex is immutable and that it does far more harm than good to pretend otherwise, are less cogent, serious, cohesive or important than “humanism” (whatever that means). Rather, they think that those beliefs are as unconvincing, flippant, incoherent, or trivial as merely believing that the Tories or Labour are worth voting for, or in the supreme nature of the Jedi Knights. They are are entitled to their stupid opinion. However, it that stupid opinion remains the law of the land, because Dr Mackereth does not successfully appeal the only Grainger criterion he lost his appeal on, I shall take this as an insult, and remain an outlaw. I wouldn’t recant my insulted beliefs with a gun held to my head, and nor would Dr Mackereth, I dare say.

    Jedi Knights indeed!

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