Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2)
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Eady,Mr D Bleiman,Mr D G Smith |
| Neutral Citation | [2022] EAT 99 |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 01 July 2022 |
Judgment approved by the Court for handing down: DR DAVID MACKERETH v DWP AND ANOR
Page 1 [2022] EAT 99
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Neutral Citation Number: [2022] EAT 99
Case No: EA-2019-001051-LA
IN THE EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 29 June 2022
Before :
THE HONOURABLE MRS JUSTICE EADY DBE, PRESIDENT
MR D BLEIMAN
MR D G SMITH
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Between :
DR DAVID MACKERETH Appellant
- and –
THE DEPARTMENT FOR WORK AND PENSIONS (1)
First Respondent
ADVANCED PERSONNEL MANAGEMENT GROUP (UK) LIMITED (2)
Second Respondent
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Michael Phillips (instructed by Andrew Storch, Solicitors) for the Appellant
Robert Moretto (instructed by Government Legal Department) for the First Respondent
Rad Kohanzad (instructed by Croner Group Ltd) for the Second Respondent
Hearing dates: 28 and 29 March 2022
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JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives
by email and release to The National Archives.
The date and time for hand-down is deemed to be 10:30 am on 29 June 2022
Judgment approved by the Court for handing down: DR DAVID MACKERETH v DWP AND ANOR
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Summary
Religion or belief discrimination – sections 4 and 10 Equality Act 2010 – direct discrimination -
harassment – indirect discrimination
We recognise that this case may touch on issues of wider social concern and debate. We make clear
that we express no views as to the merits of any side in that debate, it is not the role of the Employment
Appeal Tribunal to do so (Forstater v CGD Europe and ors [2022] ICR 1 EAT). Our function is
to determine such questions of law as arise in the case before us; specifically, to decide whether the
ET erred in the Judgment under appeal.
The claimant is a doctor. He is a Christian who holds the following beliefs or lack of belief: (a) in
the truth of Genesis 1:27, that a person cannot change their sex/gender at will and attempting to do
so is pointless, self-destructive and sinful; (b) a lack of belief in “Transgenderism” and “gender
fluidity”, such that he does not believe (i) a person can change sex/gender, (ii) that “impersonating”
the opposite sex may be beneficial for a person’s welfare, or (iii) that society should
accommodate/encourage such “impersonation”; and (c) a belief that it would be irresponsible and
dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the
opposite sex.
Having started employment as a health and disabilities assessor, carrying out assessments on behalf
of the first respondent in relation to claimants for disability-related benefits, during his induction
training, the claimant 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 Employment Tribunal (“ET”)
relying on the protected characteristic of religion or belief and claiming direct discrimination,
harassment and indirect discrimination.
Judgment approved by the Court for handing down: DR DAVID MACKERETH v DWP AND ANOR
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Although accepting that Christianity was a protected characteristic, the ET found that the claimant’s
particular beliefs did not meet the Grainger criteria (Grainger plc v Nicholson [2010] ICR 360,
EAT): beliefs (b)(ii) and (iii) and (c) did not meet Grainger (ii), (iii) and (iv) and none of the
claimant’s beliefs (a)-(c) satisfied Grainger (v). Even if his beliefs did amount to a protected
characteristic for the purposes of the Equality Act 2010 (EqA), however, the ET went on to find, in
the alternative, that he had not suffered the acts of less favourable treatment/harassment complained
of and that he had not suffered direct discrimination or harassment. The ET further held that the
provisions, criteria and practices (“PCPs”) applied (to use service users’ preferred pronouns and to
confirm a willingness to adhere to that policy) were 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, and to provide a service that promoted equal
opportunities). The claimant appealed.
Held: dismissing the appeal
It was not in dispute that the claimant’s Christianity was a protected characteristic under the EqA but
his case depended upon his demonstrating that his specific beliefs, or lack of belief, (a)-(c) fell within
section 10 EqA; the ET did not err in focusing on the case before it. Given that the claimant’s
statements of belief at (b)(ii) and (iii) and (c) related to how society should treat those who present
other than in conformity to their natal sex, the ET had erred in finding these did not relate to weighty
and substantial aspects of human life and behaviour (Grainger (iii)). It had also erred in failing to
engage with the claimant’s case regarding the matters at (b) as one of lack of belief, which would fall
to be protected under the EqA irrespective of the Grainger criteria (Forstater paragraph 106
applied). In any event, the progressively narrow way the claimant’s beliefs were defined meant the
ET was entitled to find that the matters at (b)(ii) and (iii) and (c) lacked the necessary cogency,
seriousness, cohesion and importance for Grainger (iv), although it had been wrong to find these
were merely opinions based on the information available (Grainger (ii)) when the statements were
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