Gender-critical religious beliefs are protected but do not justify discriminatory behaviour

The Equality Act provides that it is unlawful to discriminate against someone because of a protected characteristic. “Religion or belief” is one of the nine specified “protected characteristics”, and the list also includes “sex” and “gender reassignment”.  Sometimes protected characteristics can come into conflict with each other.  This is particularly likely to happen where a belief affects the rights of others.  A high-profile current battleground is the conflict between “gender-critical” beliefs (which essentially criticise the view that gender identity can differ from sex assigned at birth), and the rights of transgender and non-binary people not to be discriminated against.

A decision of the Employment Appeal Tribunal (EAT) in 2009 (Grainger plc v Nicholson) established the criteria that are relevant when deciding whether a belief qualifies for protection. The “Grainger criteria” include a condition that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.  The recent EAT decision in Forstater v CGD Europe established that gender critical beliefs are protected beliefs under equality law.  We wrote about this decision in detail here.

The issue has just been considered again by the EAT.  Mr Mackereth applied for a job as a health and disabilities adviser (HDA), which involved conducting face-to-face assessments of applicants for disability-related benefits and preparing reports.  He holds certain beliefs about transgender people which are based on his Christian beliefs.  These include beliefs that a person cannot change their sex/gender.  During an induction course, he said that he objected to using pronouns, or a title or style of address, which are inconsistent with the service user’s gender assigned at birth.  He maintained this position after starting work.  This was inconsistent with the service’s policies, and his employer attempted to clarify the position with him before his contract was ended.

ET finds beliefs not protected, and no discrimination

Mr Mackereth brought claims for direct discrimination, indirect discrimination and harassment, based on the protected characteristic of religion or belief.  This was heard by the Employment Tribunal (ET) before the EAT’s decision in Forstater had been published. 

The ET found that the claimant’s particular beliefs did not meet the Grainger criteria for protection.  The ET also went on to decide that, even if the beliefs were protected, he had not been discriminated against.  There was no treatment that would amount to direct discrimination or harassment.  In relation to indirect discrimination, the requirement to use service users’ preferred pronouns and adhere to this policy was a necessary and proportionate way to ensure that transgender service users were treated with respect and in accordance with their equality rights, and to promote equal opportunities.     

EAT finds beliefs were protected, but there was no discrimination

The EAT followed the same approach as in Forstater and found that Mr Mackereth’s beliefs were protected, meaning they could form the basis of a claim for discrimination based on religion or belief.  In particular, the ET had got it wrong by applying too high a threshold for protection.  In a pluralist democratic society, this needs to be set at a low level so as to allow for protection not just of beliefs held to be acceptable by the majority but also of minority beliefs, even where those beliefs might offend others.  The ET had found that the beliefs were “likely to cause offence”, but this doesn’t mean such beliefs should automatically be excluded from protection. A similar finding was made in the case of Seyi Omooba v Michael Garret Associates and others, where the ET found that the claimant’s views against homosexuality “[scraped] over the threshold for protection” notwithstanding their potential to cause offence.

However, the EAT agreed with the ET’s alternative findings that there had not been any unlawful discrimination against Mr Mackereth.

• There was no direct discrimination, as the ET had found Mr Mackereth was not treated as he was because of his beliefs, but because the service wanted to treat service users in accordance with their wishes.  Any other HDA who refused to follow this policy would have been treated in the same way, regardless of whether they shared the same beliefs.
• There was no harassment either.  Although Mr Mackereth’s treatment was related to his beliefs, he had accepted that it was only right that his employer sought to address these issues with him.
• There was no indirect discrimination, as the ET had correctly found that the treatment of Mr Mackereth was justified.  There was a requirement for HDAs to use service users’ preferred pronouns, and to confirm they were willing to do so.  This did disadvantage the claimant, and those sharing his beliefs.  However, the ET looked carefully at whether this was justified in order to ensure that service users were treated with respect and did not suffer discrimination, and to provide a service complying with an overarching policy of commitment to equal opportunities.  This included looking at the context, particularly sensitivities arising from the face-to-face interactions which are part of the HDA role.  The ET also considered whether there were alternative options that could accommodate Mr Mackereth’s beliefs in the workplace, and found that there were no practical alternatives.

Where does this leave us?

This decision confirms the approach taken in Forstater, and emphasises that only the most extreme beliefs will not be protected by equality law.  Beliefs that offend others do not fall outside protection simply for that reason.

This does not mean, however, that employers are unable to take action in order to prevent a person who holds certain beliefs from discriminating against others in the workplace.  This is the current issue in Forstater, which was sent back to the ET for it to consider whether the claimant was actually discriminated against or harassed because of her beliefs (or lack of them).  The case has been heard, and we are currently waiting for the decision.

As happened in this latest case, appropriate action is currently unlikely to be direct discrimination or harassment if an employer acts in order to uphold its equal opportunities policies, rather than directly because of the beliefs held by an employee.  This relies on drawing a distinction between the beliefs that someone holds, and the manifestation of those beliefs through words or actions.  Some people argue that it is not possible to make a simple distinction in this way.  This is one of the issues that was argued before the ET in Forstater, and it will be interesting to see what is decided on this point.

The key issue in relation to indirect discrimination is justification, and whether the employer’s actions are proportionate.  Mr Mackereth’s case was a relatively straightforward one, as his job involved dealing with people face-to-face, there was evidence about the effect on transgender people of refusal to recognise their gender, and no practical alternatives were put forward.  It may be more difficult for an employer to justify a refusal to accommodate gender-critical beliefs in a different workplace where more there are more options to accommodate those beliefs without offending others.

An example of a more difficult case might be that of Kristie Higgs, who was dismissed for two Facebook posts criticising school teaching policy on same-sex relationships and gender identity.  This has recently been heard by the EAT and we are waiting for the decision.  

Mr Mackereth has already said that he intends to appeal the EAT’s decision.  This remains a challenging topic, and we will keep you updated on further developments.

Mackereth v The Department of Work and Pensions and others – judgment available here.