Equality Protection for Philosophical Beliefs

The law on discrimination against religious belief is well known and some recent cases have served to define further what a belief is, extending the protection of the Act to strongly-held philosophies and beliefs that satisfy the requirements of the law.

A case in the news now has the potential to broaden the scope of the Equality Act further still by tackling the question of whether ethical veganism is a qualifying belief.

The case of the ethical vegan

Jordi Casamitjana worked for the League Against Cruel Sports. He found that it was investing its pension funds in companies that were involved in animal testing.

After drawing this to the attention of his managers and seeing no change in the practice, he informed other employees in what he considered a protected disclosure, otherwise known as whistleblowing. His employer dismissed him after that act, stating that it was for gross misconduct.

He took his case to an Employment Tribunal, claiming that he had been discriminated against because of his philosophical belief in ethical veganism, which had motivated his action.

The Tribunal will convene in March 2019, but before that, it will hold a preliminary hearing to consider whether ethical veganism is a "philosophical belief" protected by law.

A preliminary hearing is often held before the full Employment Tribunal goes ahead in order to examine aspects of the law relating to the claim that may be unusual or out of the ordinary. If Mr Casamitjana is successful at the preliminary hearing, he will then attend the full Tribunal hearing that will examine the specific aspects of the dismissal.

Decisions of the Employment Tribunal are not binding authority (they need to be upheld by the Employment Appeal Tribunal or the Court of Appeal to have value as precedents) but if the claim is successful, it may nonetheless lead to similar claims by members of other belief groups.

A successful claim upheld as a precedent could be significant because other ethical vegans who are able to satisfy the five requirements could bring claims of discrimination in employment, in the provision of goods and services, and education.

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What is ethical veganism?

Ethical vegans claim that veganism is a belief and affects every single aspect of their lives.

Unlike dietary vegans who just eat a plant-based diet, ethical vegans exclude all forms of animal exploitation by not wearing clothes made of wool or leather and not using products tested on animals.

They may call pets "companion animals" and will refuse to visit zoos or other places where they believe that animals are being exploited or mistreated.

They may also, as was the case with Mr Casamitjana, work to expose instances of animal mistreatment which are being facilitated by other organisations.

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What does the law say?

Section 10 of the Equality Act 2010 makes harassment, victimisation and direct or indirect discrimination against a person based on their religion or belief unlawful. However, Section 10 also mentions philosophical belief, and this has proved rather harder to define.

The landmark case for deciding the eligibility of a philosophical belief for protection under the Equality Act is Grainger plc v Nicholson (2009).

In this case, the claimant had a belief in man-made climate change and this meant that when he was asked to return to head office to collect a forgotten phone, his objection to unnecessary air flights meant that he felt duty-bound to refuse. He was made redundant soon afterwards.

He claimed that this was discrimination on the basis of his beliefs as other employees, who did not share his beliefs, were not made redundant.

Although his employer claimed that the claimant had used scientific evidence to form an opinion (and thereby invalidated his view from the definition of philosophical belief), he was able to show that his belief did in fact inform his entire life, since he had adopted carbon neutral measures in several areas including vehicular travel and house design.

In its judgment on the case, the Employment Appeal Tribunal helpfully laid out five tests that should be applied to any belief to determine whether it could be counted as a philosophical belief for the purposes of equality legislation.

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What are the five tests?

(i) The belief must be genuinely held.

(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

These five conditions were later incorporated into Section 52 of the Guidance Notes for the Equality Act 2010.

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What should employers bear in mind?

Grainger plc v Nicholson and subsequent cases show employers what they should look out for when allegations are being made of discrimination on the grounds of a philosophical belief. Suggestions that such beliefs are less worthy of protection under the law than religious beliefs were firmly rejected by the Employment Appeal Tribunal.

It’s important for employers to note that if a dismissal is found to have taken place for a discriminatory reason, the qualifying service period of 2 years, which usually disqualifies a claim for unfair dismissal, will not apply.

Equally significant is the fact that compensation for a dismissal due to discrimination has no cap to the compensation that can be awarded, and the court or tribunal may also rule that an injury to feelings award is also payable.

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