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The Range of Reasonable Responses Newsletter: July 2019

Surely it can't be August already? I'm going to stick to calling this the July issue. 

This issue is prompted by a news story that a client pointed out to me about a doctor claiming religious discrimination. This is a subject I have strong views about but it isn't a very common Tribunal claim. The latest annual statistics show that there were just over 700 religion or belief discrimination cases in 2018/19 compared to over 9,000 claims of sex discrimination. But the cases often receive extensive media coverage - thanks largely to the efforts of the Christian Legal Centre. They have a distinct knack for getting their cases in the papers - particularly the Daily Mail. They tend not to win their cases, but I almost suspect that this is a deliberate strategy on their part. They get coverage when they lose at Tribunal and then even more coverage when they lose on appeal. 

The latest case to make the news is that of Mackereth v Department for Work and Pensions. We only have press reports to go on so we should treat the facts with caution, but it appears that Dr Mackereth was removed from his position as a disability claims assessor because he refused to agree that trans people who were seeing him for the assessment of their disability benefit claims should be addressed by their chosen pronoun. His position seems to be that his reports would refer to patients as 'he' or 'she' according to his beliefs about their gender - irrespective of their trans status. 

It should be obvious to the Christian Legal Centre - who are enthusiastically backing his case - that his claims of discrimination are hopelessly misconceived. But before I explain why, I want to look at two recently decided cases (both backed by the Centre) involving a magistrate's views on gay adoption.  

Page v Lord Chancellor; Page v NHS Development Authority

In the first of these cases Mr Page was excluded from his role as a magistrate following repeated interviews he had given in the national press expressing his views about same sex adoption (he sat in the family courts, and one of his functions was to rule on adoption applications). His position was that he was obliged to make decisions based on the welfare of the child and his view was that the child's welfare was best served through adoption by a man and a woman.  When he was reprimanded for the approach he had taken in a particular case he gave a number of media interviews - including for the BBC - in which he reasserted his views and accused the Lord Chancellor's department of discriminating against Christians. 

The Lord Chancellor's department was frustrated that he seemed to show no insight into the need to make decisions based on the evidence presented in court, rather than on his own view of what the best interests of the child might be.  They concluded that a reasonable person reading or hearing his comments in the media would conclude that he was biased against same-sex adopting couples and so they removed him form the post of magistrate. 

His claim for discrimination was rejected. It was not his belief that was the reason he was excluded but the fact that he had publicly expressed opinions that indicated a bias against same-sex couples. Anyone who had done this would have been treated in the same way regardless of their religious views. Mr Page had also claimed victimisation - and the Tribunal accepted that the BBC interview involved an allegation of discrimination. However, the Tribunal held that it was not the allegation of discrimination that had led to him being removed from the magistracy but his apparent inability to decide cases impartially. The EAT agreed that the section of the interview that contained the protected act could be separated from the part that indicated his biased view towards same-sex adoption. His appeal was therefore dismissed. 

The second case arose indirectly from the first. As well as being a magistrate, Mr Page was also a non-executive director of an NHS Trust and following his media appearances a complaint was made by the chair of the Trust's LGBT staff network expressing concern that the Trust might be associated with the views that he had expressed.

The chair of the Trust met Mr Page and it was agreed that the Trust would be informed of any further media appearances. Almost immediately however Mr Page gave the interview to the BBC which ultimately led to him being excluded from the magistracy. When the Trust leaned of his removal, they arranged a further meeting, but before it was held Mr Page gave further interviews leading to more national coverage and an appearance on ITV's Good Morning Britain.

As a result it was decided that it was not in the interests of the Trust for Mr Page to continue to serve as a Director. The Trust said that he had shown that he was incapable of distinguishing between his personal views and what it was appropriate for him to say in public given his high profile role within the Trust. He had shown no insight into the effect that his comments would have. The Trust had a duty to promote equality and faced a particular challenge in persuading members of the LGBT community to engage with their services - particularly around mental health. Mr Page's public comments and the manner in which he made them were felt to be undermining of the Trust's efforts.

Again it was held that there was no discrimination or victimisation. Mr Page was not removed from his post because of his beliefs but because of the manner in which he chose to express them. The problem was not what he believed but the fact that persistently gave media interviews without informing the Trust. There was no indirect discrimination because there was no evidence that a particular group was disadvantaged by the Trust's policy of maintaining the trust and confidence of the LGBT community. Finally there was no victimisation because although Mr Page had made allegations of discrimination, it was not those allegations that led to his removal but the manner in which he commented on LGBT issues. The EAT upheld all of these findings. 

So why will Dr Mackereth lose? 

As with the Page case, it seems that it is not Dr Mackereth's beliefs that have led to him losing his post - but his conduct.  Anybody who refused to address patients in the required way would be treated just the same, whatever their individual beliefs. His beliefs are not the reason for the treatment. He was sacked (for want of a better word) because he refused to obey instructions. Frankly I think the case for Dr Mackereth is even weaker than for Mr Page. At least you could argue that Mr Page was expressing an overtly religious belief - he was doing more than being fussy about pronouns.  

But could the instruction given to Dr Mackereth amount to indirect discrimination? I don't think so. Where is the evidence that the instruction causes a particular disadvantage to people who share his religious beliefs? Where is the data? Plenty of people might have an objection to using particular pronouns without having any coherent belief to back that up. Many people might object to the whole idea of somebody changing their gender - but accept the need to show courtesy to a vulnerable patient. He has to show that the requirement to use a patient's preferred pronouns causes a particular disadvantage to people who share his religious beliefs and I just don't see how he is going to do that. 

In any event, the instruction is surely justified. The Department thinks that not using a patient's preferred pronoun will amount to harassment. That seems plausible to me, but even if it isn't actually harassment, it is at least rude. An employer must be entitled to instruct its workers not to be rude to its customers or service users. If that isn't a proportionate means of achieving a legitimate aim then I don't know what is. 

So where does that leave us?

This has turned into a bit of a rant. 

Religious discrimination is often framed as a battle between protected characteristics - as if the Tribunal has to decide to choose one to be protected at the expense of the others. I think that one of the reasons I find the Christian Legal Centre so infuriating is that they seem willing to play up to this idea. But that is not how the law works. In the Equality Act the protected characteristics are listed in alphabetical order and they are all equal - even if the rules might work slightly differently for some of them. 

So the Page case is not Christianity v sexual orientation and the Mackereth case is not Christianity v gender reassignment. Mr Page lost because it was not his belief, but his conduct that was the problem. Dr Mackereth will lose for the same reason.

Their is no hierarchy of protected characteristics. But there is a difference between having a protected characteristic and the way in which you actually behave. Perhaps the reason we see these rather fraught religious discrimination cases is that belief and behaviour are more closely intertwined - but the distinction still needs to be made. 

Let's take a break. August is no time to be thinking about employment law. I'll be back in September with the latest employment law bees in my bonnet.

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