THE Employment Appeal Tribunal (EAT) has published its much-anticipated judgment in the case of Dr David Mackereth, who was forced out of his position as a health and disability assessor with the Department of Work and Pensions for seeking, as a Bible-believing Christian, to exercise a conscientious objection to being compelled to use a service user’s desired pronouns. The matter came up as a hypothetical during Dr Mackereth’s induction. In other words, no service user was alleging that Dr Mackereth had discriminated against them. Essentially, Mackereth was pushed out of his job because of a hypothetical.
You can read about the case here.
The case was on appeal after the Employment Tribunal perversely found that belief in Genesis 1:27, that God created man and woman, was not worthy of respect in a democratic society.
The EAT held that the lower tribunal had erred in ruling that the belief that transgenderism was against God’s creation order was not a protected belief within the meaning of section 10 of the Equality Act 2010. It further held that other narrower beliefs which flowed from the core belief in Genesis 1:27 were also protected. Lastly, the EAT ruled that the lack of belief in transgenderism was protected, meaning that the ET was wrong in not analysing Dr Mackereth’s claim within the context of whether he had been treated less favourably because he refused to affirm transgender belief.
Despite holding that the ET’s judgment was tainted by what should have been a fatal flaw, the EAT inexplicably went on to dismiss the appeal on the basis that it believed the ET had done a proper assessment of the merits as if the beliefs had been protected. Ultimately, the EAT affirmed the ET’s findings that while the belief, or lack of belief, in transgenderism was protected, its manifestation in the workplace was qualified.
Therein lies the problem. William Faulkner wrote, ‘We must be free not because we claim freedom, but because we practise it.’ Protecting a belief but not its manifestation makes the laws guaranteeing religious freedom a dead letter. While the manifestation of beliefs may be qualified under the law, the lengths to which courts and tribunals will go to justify penalising the manifestation of a belief should worry us all. The EAT’s ruling in this case speaks to this existential threat facing some of our most fundamental freedoms.
Inexplicably, the EAT favourably cited its earlier judgment in the Maya Forstater case that there should be no blanket requirements for compelled pronoun use but moments later upheld a blanket requirement on compelled pronoun use. The EAT then criticised the ET for wrongly assuming that the failure to use one’s desired pronouns would automatically give rise to issues under the Equality Act, but nonetheless went on to suggest that Dr Mackereth should have been required to use someone’s desired pronouns even if that person fell outside of the legal protections of the Act. The EAT praised the tried-and-true principle that public authorities owe a duty of strict neutrality and should not be assessing the content of someone’s deeply held beliefs. But just as the EAT had in the Forstater case, in the next breath it implied that the beliefs of people like Dr Mackereth ‘might well be considered offensive and abhorrent’.
The real problem is that when a court or tribunal suggests that a belief is protected, but then also suggests the belief is abhorrent, it will bend over backwards, as it has in this case, to justify punishing its manifestation. When our courts say that justifying interference with religious beliefs is highly fact specific, what they are really doing is promoting viewpoint discrimination. The fatal fruits of that viewpoint discrimination can be seen in how the EAT affirmed the ET’s balancing of competing interests in finding that the respondents did nothing wrong in this case.
For example, the ET gave more weight to non-rights holders (those who do not fall within the definition of gender reassigned) than to an actual rights holder (Dr Mackereth, who had a protected belief and a lawful right to exercise a conscientious objection). It found that forcing Dr Mackereth to go against his conscience or lose his job was only a minor impediment. It also, against all the evidence, including the last email which was sent to Dr Mackereth telling him he either had to go against his beliefs or resign, found that he was not penalised or dismissed for his beliefs. Perhaps most astonishingly of all, the EAT suggested that the ET found group disadvantage in the context of his indirect discrimination claim, when it in fact did not.
The EAT’s judgment was mired in flawed reasoning and patently incorrect findings. This case will be appealed. The marginalisation of Christian views and the erosion of the rights of Christians to enjoy equal protection under the law cannot be allowed to stand. We are confident, given the flaws in the judgment, some of which are highlighted in this article, that the Court of Appeal will do the right thing and grant Dr Mackereth justice.