Ms F MacDonald v Represented by: Ms N Cunningham - Counsel Public and Commercial Services Union — 2026

The claimant brought complaints of direct and indirect discrimination against the respondent trade union, relying on protected belief under section 10(2) of the Equality Act 2010, specifically gender critical belief. The respondent applied under rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 to strike out the section 19 indirect discrimination complaint on the basis that it had no reasonable prospect of success. The direct discrimination complaint was not within the scope of the application.

The tribunal refused the respondent's first ground of strike-out. It held that, although proving that the respondent had adopted gender identity belief as an institutional belief might be demanding, the documentary material before the tribunal pointed in both directions and could be affected by oral evidence and further documents. The claimant's case was not totally and inexplicably inconsistent with undisputed contemporaneous documents, and deciding the point at that stage would risk an impromptu mini-trial.

The tribunal also rejected the argument that the pleaded provision, criterion or practice could not properly be a PCP. It accepted that the claimant had a stateable case that the adoption of an institutional belief, including being regularly manifested and acted upon, could amount to a PCP if established on the evidence. The tribunal allowed an amendment adding wording that gender identity belief had been adopted, including being regularly manifested and acted upon as an institutional belief.

The tribunal found that the indirect discrimination complaint lacked specification in other respects. It appeared to have been pleaded as an alternative claim based on the same facts as the section 13 direct discrimination complaint concerning how the claimant was to receive her award, but the claimant also suggested it went beyond that. The tribunal ordered the claimant to provide further particulars of the section 19 complaint and refused, at that stage, the claimant's application to remove the words 'In the alternative' from paragraph 43 because doing so would make the case less clear rather than more focused. No remedy was awarded because the judgment decided only the strike-out and related case management issues.