Disabilities Assessor Holding Gender Critical Views Claims Discrimination; Loses Appeal

In the case of Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2): [2022] EAT 99, Mrs Justice Eady and the Employment Appeal Tribunal (EAT) panel found that on several occasions the Employment Tribunal (ET) had erred in applying the key criteria as laid down in Grainger v Nicholson ([2009] UKEAT/0219/09/0311), a landmark case to determine whether a belief or lack of belief amounts to a protected characteristic. However, the EAT still upheld the ET decision and dismissed the appeal based on its findings that Dr Mackereth had not, in fact, been treated less favourably based on his gender critical beliefs and thus suffered no discrimination.

The facts in Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2)

Dr Mackereth (the Claimant) was a doctor and a Christian who held the following beliefs/lack of beliefs:

  1. According to Genesis 1:27, a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive and sinful.
  2. A lack of belief in “Transgenderism” and “gender fluidity”, such that he did not believe that a person can change sex/gender; that “impersonating” the opposite sex may be beneficial for a person’s welfare, or that society should accommodate/encourage such “impersonation”; and
  3. A belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex.

The Claimant started employment as a health and disabilities assessor, carrying out assessments on behalf of the First Respondent in relation to claims for disability-related benefits. During his induction training, he explained that his beliefs were such that he would not agree to use the preferred pronouns of transgender service users. This conflicted with the Respondents’ policies and attempts were made to clarify the Claimant’s position to see if his beliefs could be accommodated. Ultimately, the Claimant left his employment and brought proceedings in the ET relying on the protected characteristic of religion or belief and claiming direct discrimination, harassment and indirect discrimination.

The decision of the ET

Although they accepted that Christianity was a protected characteristic, the ET found that the Claimant’s gender critical beliefs did not meet the Grainger criteria. And even if his beliefs did amount to a protected characteristic for the purposes of the Equality Act 2010 (EqA 2010), the ET went on to find that he had not suffered the acts of less favourable treatment/harassment complained of and that he had not suffered direct discrimination. The ET further held that the provisions, criteria and practices (“PCPs”) applied (that is to use service users’ preferred pronouns and to confirm a willingness to adhere to that policy) were a necessary and proportionate means of achieving the Respondents’ legitimate aims (to ensure transgender service users were treated with respect and in accordance with their rights under the EqA 2010).  The Claimant appealed.

The decision of the EAT

The EAT dismissed his appeal.

They concurred with the ET that Christianity was indeed a religion that could be a protected characteristic under EqA 2010. However, the merits of the Claimant’s case relied on him showing how his specific gender critical beliefs (as outlined above) were protected within section 10 EqA 2010.

The EAT felt that the ET had erred in applying the Grainger criteria to these specific gender critical beliefs. For example, not properly considering that a lack of belief could be as equally well protected as a belief and concluding that his beliefs were not worthy of respect in a democratic society and not in conflict with the fundamental rights of others.  The ET had also wrongly considered the Claimant’s beliefs relative to his particular employment and assumed they must give rise to unlawful discrimination or harassment. Plus, they focused on the potential manifestation of the Claimant’s beliefs instead of the beliefs themselves. In reaching these conclusions, the EAT also considered the case of Forstater v CGD Europe and ors [2022] ICR 1 EAT.

Despite the EAT’s comments on the ET’s approach to belief, in this case, it agreed with the ET’s decision and was correct in finding that the Claimant’s beliefs were not the reason for the Respondents’ conduct. On the question of indirect discrimination, as the Claimant had accepted that his particular beliefs were not shared by all Christians, the ET’s conclusion indirect discrimination was not relevant here, was also correct.

Our lawyers’ views on the case

Caroline Lewis, a lawyer at Redmans, commented: “The practical implication of this case is that section 10 gender critical discrimination claims are likely to be highly fact sensitive. And, that is the situation here with a doctor helping certain kinds of clients under his employment contract.  It also appears that the Claimant’s resignation was rather precipitate before giving his employer time to try and deal with the problem and issuing proceedings instead.”

The decision of the Employment Tribunal in Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2) can be found here