In July 2022 the Employment Appeal Tribunal (‘EAT’) held, in the case of Mackereth v The Department for Work and Pensions, that a doctor’s belief that people cannot change their gender or sex and his lack of belief in “transgenderism” were protected philosophical beliefs under the Equality Act 2010.
Background
Dr Mackereth was employed by the Department for Work and Pensions (‘DWP’) to carry out health assessments on individuals applying for disability related benefits. The DWP had a policy that required employees to address transgender service users by their preferred pronouns. However, Dr Mackereth refused to do so on the basis that it was against his beliefs, namely 1) an individual cannot change their sex or gender; 2) that it would be dishonest for a healthcare professional to accommodate a patient’s “impersonation” of the opposite sex; and 3) he did not believe in “transgenderism” and “gender fluidity.”
Dr Mackereth left his employment and submitted a claim to the Employment Tribunal alleging that he had been subjected to direct discrimination, harassment and indirect discrimination because of his beliefs.
The Employment Tribunal
The reference to a belief under the Equality Act 2010 includes a lack of belief. For example, a lack of belief in religion is protected under the Act as much as believing in religion is. In this case, the Tribunal had to consider whether Dr Mackereth’s beliefs and lack of beliefs were capable of protection under the Equality Act 2010.
Rejecting Dr Mackereth’s claims, the Employment Tribunal held that his beliefs were not protected under the Equality Act 2010, in particular because they were not worthy of respect in a democratic society; were incompatible with human dignity; and were in conflict with the rights of transgender individuals.
Dr Mackereth appealed to the EAT.
The EAT’s Judgment
The EAT disagreed and held that Dr Mackereth’s beliefs (and lack of beliefs) were in fact protected under the Equality Act 2010. The Court determined that a belief is capable of being worthy of respect in a democratic society provided it does not have the effect of destroying the rights of others. The fact that someone’s belief offends or surprises others does not automatically prevent it from being protected.
Whilst Dr Mackereth’s beliefs and lack of beliefs were protected, his claims were ultimately unsuccessful on the facts of the case. The EAT determined that that DWP’s actions did not amount to direct discrimination or harassment. The Court held that the DWP had sought to find ways to accommodate Dr Mackereth’s beliefs and had not put any pressure on him to renounce them.
Dr Mackereth’s indirect discrimination claim also failed. The aim of DWP’s policy was to ensure that transgender services users were treated respectfully and without discrimination, and to provide a service that complied with its commitment to equality, which the EAT determined were both legitimate aims.
Comment
Employers and employees are taking more and more steps to support the transgender community in the workplace, most noticeably with the increasing use of preferred pronouns in email signatures. This case serves as a useful reminder that opposing beliefs can be equally protected under the Equality Act 2010. In this instance, the belief that a person can change their gender and/or sex being equally protected as the belief that they can’t.
Employment Tribunals seem to be adopting a wide approach in determining what constitutes a protected belief under the Equality Act 2010, including where they may be offensive or shocking (provided they do not destroy the rights of others). Employers should be mindful of this in managing their workforce. Whilst this case does not give every employee the right to manifest their beliefs in the workplace however they choose, employers should encourage their employees to be tolerant of opposing beliefs.
For any advice regarding discrimination in the workplace, please contact the Employment Team.
