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Summary
Following last year’s decision in Forstater – v – CGD Europe and others, the Employment Appeal Tribunal has confirmed that gender critical beliefs are protected philosophical beliefs. Nevertheless, this protection is not limitless and an employer can still take appropriate action to protect others’ rights without discriminating unlawfully.
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Legal background
The Equality Act 2010 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 [2010] IRLR 4) 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 2021 EAT decision in Forstater – v – CGD Europe and others (UKEAT/0105/20) established that gender critical beliefs are protected beliefs under equality law. We wrote about this decision in EELC 2021/30. -
Facts
The issue has just been considered again by the EAT. Dr 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 held certain beliefs about transgender people which were based on his Christian beliefs. These included 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 sex 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.
Dr 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 decision
The EAT followed the same approach as in Forstater and found that Dr 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 ([2021] UKET 2202946/19, 2602362/19), 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 Dr Mackereth:There was no direct discrimination, as the ET had found Dr 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 Dr 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 Dr 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 were part of the HDA role. The ET also considered whether there were alternative options that could accommodate Dr Mackereth’s beliefs in the workplace, and found that there were no practical alternatives.
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Commentary
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 was the issue that was in dispute 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). That case is also reported in this edition of EELC (2022/34).
As in this case, action is unlikely to amount to 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 inappropriate manifestation of those beliefs through words or actions. This is one of the issues that was discussed by the ET in Forstater.
The key issue in relation to indirect discrimination is justification, and whether the employer’s actions are proportionate. Dr 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 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.
Dr Mackereth has already said that he intends to appeal the EAT’s decision. This topic will remain a challenging one for employers, even with increased judicial guidance in this area. -
Comments from other jurisdictions
Denmark (Christian K. Clasen, Norrbom Vinding): The British case illustrates how different characteristics protected under anti-discrimination law may conflict, especially where a religious belief affects the rights of others. In such cases, the question is whether the employer is allowed to take action in order to prevent an employee who holds certain beliefs from discriminating against other persons – colleagues, clients or citizens – in the workplace.
In a Danish context, the British case is very interesting as the Danish Board of Equal Treatment recently decided two cases involving similar issues to those in the British case. However, the Board came to a different conclusion.
The Danish cases concerned two female Muslim trainee teachers who refused to shake hands with men due to their religious beliefs. As a condition for continuing the traineeship, the school, however, required that the two trainee teachers interacted with all students, parents and colleagues on an equal footing, regardless of the person’s gender. This included shaking hands with men as well as women.
For this reason, the two trainee teachers filed a complaint to the Board, claiming compensation for discrimination on grounds of religion and belief.
The school argued that the requirement for employees not to discriminate against students, parents and colleagues, and thus to shake hands with all persons regardless of their gender, did not constitute discrimination against the two trainee teachers. In this regard, the school further argued that authorities, and especially teachers in public schools, have a special obligation to convey the principles of equality and non-discrimination in relation to students.
The Board found that the school’s requirement for all employees to shake hands with all persons regardless of their gender constituted an apparently neutral criterion that would put persons having the same religious belief as the two trainee teachers at a disadvantage compared with other persons.
Further, the Board found that the requirement was objectively justified by the legitimate aim of ensuring gender equality, and that the requirement was appropriate to achieve that aim.
However, the Board also found that the requirement was not necessary to achieve the aim. Among other things, the Board considered that the aim of ensuring equal treatment could have been achieved by introducing a neutral form of greeting that did not involve physical contact. Thus, the Board awarded each of the trainee teachers compensation of DKK 25,000.
The British case and the Danish cases illustrate that the question of whether an employer is allowed to take action in order to prevent a person who holds certain beliefs from discriminating against others in the workplace often comes down to a specific assessment of proportionality.
Even though the assessment may be very specific, the balancing of conflicting rights is without a doubt becoming a more common dilemma as persons with various religions and beliefs interact to a greater extent as a result of globalization.
For the same reason, the Danish cases about the trainee teachers have been brought before the Danish courts and have recently been referred to the High Court in the first instance, as the point in question is considered to be of general public importance.Germany (Pia Schweers, Luther Rechtsanwaltsgesellschaft mbH): In Germany, religion and belief as well as gender and sexual identity are protected from discrimination according to the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, ‘AGG’), which implemented Directive 2000/78/EC into German law. While courts have not come up with a distinct catalogue like the Grainger criteria, yet, part of the described criteria of course helps evaluate discrimination cases in Germany, too. Here, the conflict of interests with the fundamental rights of others would be the central reference point, since the plaintiff’s religion has to be weighed against the users’ right to their sexual orientation (as well as the employer’s legitimate interests in connection with its service provision to all potential applicants).
Comparable decisions in which an employee’s religious views on transgender persons collide with their fundamental rights and interests (and/or the legitimate interests of the employer) do not yet exist in Germany. Whether German courts would find that the plaintiff was discriminated against because of their religion therefore remains an open question. However, it is conceivable that German courts would rule out a claim at least at the level of justification.
Here, the EAT’s view that the addressing of the service users is a matter of employer’s policy, is convincing. In principle, an employee in Germany shall comply with such policy if and to the extent this is not unreasonable. In particular, the direct contact of the employee with the service users speak for the reasonableness of the policy. Provided that there is no other employment opportunity available in the workplace, a corresponding decision would thus also be conceivable in Germany.Subject: Religious Discrimination
Parties: Mackereth – v – Department for Work and Pensions and another
Court: Employment Appeal Tribunal
Date: 29 June 2022
Case reference: [2022] EAT 99
Internet publication: https://www.bailii.org/uk/cases/UKEAT/2022/99.html
DOI: 10.5553/EELC/187791072022007004004
European Employment Law Cases |
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Case Reports | 2022/33 Gender critical religious beliefs are protected but do not justify discriminatory behaviour (UK) |
Keywords | Religious discrimination |
Authors | Anna Bond en Lucy Lewis |
DOI | 10.5553/EELC/187791072022007004004 |
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Suggested citation
Anna Bond and Lucy Lewis, "2022/33 Gender critical religious beliefs are protected but do not justify discriminatory behaviour (UK)", European Employment Law Cases, 4, (2022):175-177
Anna Bond and Lucy Lewis, "2022/33 Gender critical religious beliefs are protected but do not justify discriminatory behaviour (UK)", European Employment Law Cases, 4, (2022):175-177
Following last year’s decision in Forstater – v – CGD Europe and others, the Employment Appeal Tribunal has confirmed that gender critical beliefs are protected philosophical beliefs. Nevertheless, this protection is not limitless and an employer can still take appropriate action to protect others’ rights without discriminating unlawfully. |