2nd August, 2022

Employers remain able to restrict the display of a protected characteristic in the workplace

A Christian doctor lost their transgender pronoun case; but his beliefs are worthy of protection.

The Background of the Case

Mr Mackereth, a Christian doctor, was dismissed by his employer for his views in relation to his beliefs about transgenderism. He then brought an Employment Tribunal claim for both direct and indirect discrimination as well as harassment. He sought to rely on the protected characteristic of religion or belief, and that his religion was a protected characteristic.

The DWP had a policy that transgender patients would be referred to by their preferred pronouns. Mr Mackereth however argued that he could not comply with this policy based on his religious beliefs and was suspended for failure and refusal to comply with the DWP’s policy.

The Tribunal had initially dismissed Mr Mackereth’s claims, on the basis that he did not satisfy one or more of the criteria set out in Grainger Plc v Nicholson, which is the leading case for determining whether a particular belief is protected under the Equality Act. Namely, that the belief must be worthy of respect in a democratic society and that the belief must also not conflict with the fundamental rights of others. The Tribunal did not believe that Mr Mackereth’s belief satisfied the legal test in Grainger.

Mr Mackereth appealed this decision.

The EAT Decision

The EAT confirmed that whether a belief meets the Grainger threshold, cannot also depend on the context of the particular employment. Further, the EAT has made it clear that the threshold is now relatively low for what will be protected as a belief under s.4 Equality Act 2010.

Despite this, Mr Mackereth’s claims failed. The actions of the employer did not amount to discrimination. As such, employers remain able to restrict the display of a protected characteristic in the workplace. This is provided they can show that in doing so it is necessary and proportionate and in pursuit of a legitimate aim.

Summary

These cases are highly fact sensitive, and this particular case related to the patients the doctor was serving under his contract of employment, the number of transgender patients he would see and the impact on clients of the service.  It is therefore important to carefully consider the factual circumstances of the case.

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