There are 9 protected characteristics currently protected under the Equality Act 2010: age, disability, gender reassignment, pregnancy and maternity, marriage or civil partnership, religion or belief, race, sex and sexual orientation.
Direct discrimination is defined as when a person receives less favourable treatment because of a protected characteristic. Indirect discrimination is defined when a provision, criterion or practice puts someone with a protected characteristic at a disadvantage when compared to others who do not share that characteristic and that cannot be shown to be a proportionate means of achieving a legitimate aim.
In the event where one’s religious belief conflicts with another protected characteristic, is it possible to be used as a defence to a claim of discrimination?
In Mackereth v DWP the question before the Tribunal was whether a dismissal on the basis of Dr Mackereth’s rejection to referring to the preferred pronouns of transgender individuals during his face-to-face assessments with patients on the basis of his religion/belief was discriminatory.
In providing its judgement, the Tribunal referred to the Grainger Criteria (Grainger PLC v Nicholson) which provide authority for whether a belief qualifies as a “philosophical belief” under the Equality Act 2010.
In Grainger, there were 5 criteria to satisfy:
1. The belief must be genuinely held;
2. It must be a belief, and not an opinion or viewpoint solely based on the present state of information available;
3. It relates to a weighty and substantial aspect of human life and behaviour
4. It must attain a certain level of cogency, seriousness, cohesion and importance; and
5. The belief must be worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others.
Outcome
The Tribunal concluded that Dr Mackereth’s beliefs were not protected as a religious or philosophical belief as they were incompatible with human dignity and conflicted with the fundamental human rights of others. As such, his claim for discrimination was dismissed.
Dr. Mackereth appealed the decision. In concluding, the EAT ruled that the Tribunal had erred in its judgement in applying too high of a threshold to the 5th criteria in Grainger. The EAT determined that “it is necessary for the threshold to be set at a low level to protect both minority beliefs as well as majority beliefs, even where it might offend others”. Thus, it was upheld that Dr Mackereth’s beliefs did amount to a protected characteristic. Nevertheless, it drew a line between his belief and his refusal to use individuals’ preferred pronouns, which was not a protected behaviour.
The EAT upheld the Tribunal’s decision to dismiss the claim, citing that DWP’s decision to dismiss Dr Mackereth were a “necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users”.
This ruling highlights the stance in protection of philosophical beliefs, especially ones which may offend others or do not align with majority views of a society. While they may be protected under the Equality Act 2010, the behaviour stemming from that belief may not be protected.
This case law, like others such as Forstater v CDG Europe & others and Alison Bailey v Stonewall Equality Ltd & Others serve as a reminder to employers to not discriminate against an employee’s religion or belief while maintaining a balance to protect service users, clients and customers from discriminative behaviour stemming from these beliefs.
Practical points to consider
It is therefore important as employers that when you are faced with a disciplinary or grievance which potentially highlights two conflicting protected characteristics, you are careful not to form assumptions or views and take a balanced approach, respecting both parties’ protected characteristics. It often requires a detailed analysis and justification of how you have formed your conclusion(s), so we always recommend seeking independent advice from a specialist.
If you are an employer who requires assistance with a live discrimination claim and/or are looking for assistance with internal policies relating to discrimination in the workplace or any grievance or disciplinary issues, please contact Stephensons’ employment team for further assistance on 0161 696 6170 or by completing our online enquiry form.
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