A claim of discrimination can arise in a variety of circumstances, including:
But what happens where the less favourable treatment occurs due to a protected characteristic held by the person accused of being discriminatory?
A religious belief is a protected characteristic under s10 of the Equality Act 2010. Certain religious beliefs appear to be in conflict with other protected characteristics, including sexual orientation and transgender rights, which can lead to Tribunals striking a delicate balance when that conflict arises in practice.
Earlier this year, the conflict between religious beliefs and discrimination was considered by the Employment Tribunal in the case of Mackereth v DWP.
Dr Mackereth was hired by the Department for Work and Pensions (DWP) to be a health and disabilities assessor. Dr Mackereth was a devout Christian and believed that the bible was the final authority of all matters of faith and practice.
As part of his employment, he would be required to carry out face-to-face assessments.
During his induction, the subject of how to refer to transgender individuals arose. Dr Mackereth explained that, due to his beliefs, he objected to using pronouns that were inconsistent with the birth gender of the individual. Dr Mackereth was aware that his views may be perceived to be offensive to some, albeit this was not his intention.
His previous employer had been aware of these beliefs and ensured that Dr Mackereth did not treat transgender patients. However, in this new role, the DWP could not guarantee that they would be able to make an arrangement like this, as some individuals would arrive for assessment without the DWP holding any background information on them.
The DWP asked Dr Mackereth whether he would be able to follow the agreed process in using the individuals’ chosen pronouns, but Dr Mackereth confirmed that in good conscience he could not, due to his Christian beliefs. Consequently, the DWP confirmed that Dr Mackereth would not be able to work as an health and disabilities assessor.
Dr Mackereth brought a claim for direct discrimination, harassment and indirect discrimination, relying on the protected characteristic of religion or belief. He brought these claims on the following basis:
The Tribunal dismissed Dr Mackereth’s claim. They held that his belief was not one worthy of respect in a democratic society, and conflicted with the fundamental rights of others, and so was not capable of being protected under discrimination law.
Dr Mackereth appealed against that decision, but the EAT dismissed the appeal. Although the EAT did find that the Tribunal had erred in finding that Dr Mackereth’s beliefs were not protected, the EAT’s view was that there had been no direct or indirect indiscrimination or harassment, as if a non-religious individual in the position of Dr Mackereth had held the same views on transgenderism, they would have been dealt with in the same way by the DWP. This meant therefore that there was no “less favourable treatment” of Dr Mackereth.
The case of Mackereth is not the first time there has been a difficult balance between beliefs and discrimination.
In the case of Forstater, the Claimant held the belief that a person’s gender is a ‘material reality’ and therefore a biological fact, rather than a feeling or identity. She believed that although a person could identify as a different gender, this does not change their actual sex. She had shared these beliefs with colleagues, who made complaints to their employer stating that the conversations had made them feel uncomfortable, and were trans-phobic. As a result, the Claimant’s contract was not renewed, and she brought a claim of unlawful discrimination against her employer. The Claimant argued her belief relied in part on the need to protect safe spaces for women.
The Tribunal, in the same vein as in Mackereth, held that Ms Forstater’s beliefs were not worthy of respect in a democratic society. However, this was also overturned by the EAT, who held that only beliefs akin to Nazism or totalitarianism, or which condoned violence or hatred in the gravest of forms, would be capable of failing the test of being worth of respect in a democratic society. The EAT consequently held that Ms Forstater’s views did not seek to destroy the rights of trans people and were views widely held in society, therefore found that she had been a victim of direct discrimination.
The difference between the outcomes in Forstater and Mackereth was the fact that the DWP’s decision not to employ Dr Mackereth was a necessary and proportionate measure, as continuing to employ him would have jeopardised their ability to provide a service to potentially vulnerable individuals.
Mr Page was a sitting magistrate and refused to sign an order approving the adoption application of a same-sex couple due to his Christian beliefs. As a result, he was formally reprimanded by the Lord Chief Justice and Lord Chancellor. Following this reprimand, he gave an interview to the BBC and repeated his views. This led to his removal as a magistrate.
Mr Page brought a claim of unlawful discrimination to the Tribunal. His claim was dismissed but Mr Page appealed to the EAT. The EAT dismissed his appeal. They held that his removal was due to the fact that he publicly stated that he would not approve same-sex adoption applications on the basis of his own beliefs, rather than what the law required. Therefore his dismissal was lawful.
Mrs Kuteh, a nurse and a committed Christian, was dismissed for initiating religious conversations with patients. While carrying out assessments, Mrs Kuteh had advised a patient that he would have a better chance of surviving surgery if he prayed to God.
This conversation, as well as others, resulted in a number of complaints about her expressing her religious beliefs, and Mrs Kuteh was dismissed by her employer.
Mrs Kuteh brought a claim of unfair dismissal to the Employment Tribunal. The Tribunal dismissed her claim and ruled that the Employer had fairly dismissed her on the grounds of conduct. Although this case did not consider religious discrimination, it further emphasises that employees can be dismissed for inappropriate behaviour and conversation in the workplace, even if that arises from a religious belief.
Although each claim will turn on its individual facts, the case law does show that there is a difficult balance between religious beliefs and other protected characteristics, particularly those relating to sexual orientation and transgender issues.
What is clear is that whilst an employer should not discriminate against an employee for holding certain religious beliefs, that does not justify those employees expressing those views in a way that may discriminate against others, particularly when the employer is providing a service to the public.
If you are an employer and are looking for help or guidance with issues of discrimination in the workplace, please get in touch with Ashfords Employment Team.
We produce a range of insights and publications to help keep our clients up-to-date with legal and sector developments.
Sign up
