An employment tribunal recently found that a belief in ethical veganism is protected as a philosophical belief under the Equality Act 2010 (Casamitjana v League Against Cruel Sports ET/3331129/2018).

In this Alert we will explore:

• the legal basis of this finding; and

• the issues for employers in managing the workplace in light of the broadening range of characteristics that are protected by discrimination laws

IN DEPTH

Legal Basis of the finding in the League Against Cruel Sports Case

Background

Religion and belief are protected characteristics under the Equality Act 2010. “Belief” is defined in the Act as “any religious or philosophical belief and a reference to belief includes a reference to belief includes a lack of belief”. It has not always been clear, however, what the term “philosophical belief” was intended to cover.

In a 2009 case, the Employment Appeal Tribunal gave some guidance, which has been applied by employment tribunals subsequently, on the qualities that a philosophical belief must have in order to be protected by discrimination laws. It must:

• Be genuinely held

• Be a belief and not an opinion or viewpoint based on the present state of information available

• Be a belief as to a weighty and substantial aspect of human life and behaviour

• Attain a certain level of cogency, seriousness, cohesion and importance

• Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

The application of these principles has resulted in a range of beliefs being found by the employment tribunals to be protected. At the end of this Alert we have included a list of those protected beliefs. However, it is important to remember that not every belief held by every employee will be protected. It will depend, in large part, on the attitude and approach taken by the employee in question.

The decision

In the present case, the Tribunal heard evidence that the Claimant, Mr Casamitjana, became an ethical vegan in 2000 and lives, in so far as is possible, without using animal products. He does not eat meat or dairy, wear clothes containing animal products or use household items which have been made using animal testing. If his destination is within an hour’s walking distance he will walk rather than take the bus to avoid accidental crashes with insects or birds when on the bus.

It is really no surprise, therefore, that the Tribunal found that Mr Casamitjana’s belief fulfilled the requirements set out above. His belief was: clearly genuinely held; had as its aim the avoidance of the exploitation of a fellow species, making it a “weighty and substantial aspect of human life and behaviour”; and, given modern day thinking, was clearly worthy of respect.

The Tribunal also heard evidence about the work of the Vegan Society and noted the cohesion that its work brings to the thinking and approach of the vegan community.

This finding does not mean that Mr Casamitjana was in fact discriminated against. It means simply that he has the legal basis for a claim. The Tribunal now needs to decide if he was dismissed because of his ethical veganism.

Impact of the decision

The decision is uncontroversial and correct legally. However, it serves as a timely reminder to employers of the potential breadth of discrimination protection.

As issues relating to the environment and the impact of our daily lives on climate change, become inescapable, and for many critical, there is increasing scope for the interests of worker and employer to come into conflict.

Some hypothetical examples:

• Production of the new UK bank notes uses animal fats. Could an ethically vegan cashier refuse to handle notes?

• Could a salesman refuse to make in person visits to clients by car or plane because of the environmentally harmful emissions that would result?

• An employer’s uniform includes some items made from animal products. Could an employee refuse to wear it and insist on an alternative being provided?

• Could an employee insist on being satisfied that employee benefit providers meet certain standards, such a pension funds only making investment decisions that accord with the employee’s own beliefs?

In most circumstances, a claim arising from a clash between an employer’s business methods and an employee’s belief, will be one of indirect discrimination. That is, an allegation that the employer has generally applied a provision, criterion or practice (broadly speaking an act, decision or policy) which was not intended to treat anyone less favourably, but which in practice has the effect of disadvantaging a group of people with a particular protected characteristic and to which the employee in question belongs.

Where a policy disadvantages an individual with that characteristic, it will amount to unlawful indirect discrimination unless it can be objectively justified by the employer. To make out that defence, the employer must be able to show that the policy had a legitimate aim and that it went no further than reasonably required to achieve that aim.

Every employer faced with a discrimination allegation or employment tribunal claim will be concerned about the potential impact on reputation. However, from time to time, claims relating to different types of discrimination are at the forefront of public consciousness and so likely to attract particular attention. Currently, we would expect claims relating to the relationship between “big business” and environmental concerns to fall into this category.

An employer can take steps to mitigate the risk of issues arising and, if that fails, to help it defend a claim.

Employer Action Points

EDUCATE

Issues of this kind often take root when an employee raises an informal concern with his/her line manager which they do not think is taken seriously enough.

Employers should train line managers:

• to recognise that an individual’s beliefs and life choices might be protected by discrimination laws and not to rush to judgement. It might be easy for a busy line manager to dismiss concerns raised about ethical beliefs as inconvenient or unhelpful. However, it is important to pause and take advice from HR before reacting

• to understand that UK harassment laws may be invoked by a worker who feels as though their life choices and beliefs are belittled or otherwise disrespected in the workplace. This means that debate or joking between co-workers about a colleague’s views or life choices, for example, strict ethical veganism, could give rise to a claim for harassment in the same way as if the comments related to sex, race or other more established protected characteristics

PRE-EMPTIVELY CONSIDER

Review policies, procedures and modus operandi with a critical eye to assess if there are aspects which could potentially bring the business into conflict with current awareness and thinking around environmental and ethical issues.

If there are, then consider why it is important for the business to be conducted in that way; if those aspects could reasonably be changed if needed; and if not, why it would not be reasonable to do so. Document your thinking.

DOCUMENT

The most effective defence to any allegation of discrimination is a clear explanation of what happened and why it happened, supported by contemporaneous written documentation.

An employer which does not follow at least some process and cannot demonstrate that it had a cogent, non-discriminatory, reason for a decision it has taken (whether to give an employee a written warning; or dismiss them for gross misconduct; or select them for redundancy) leaves itself open to an employment tribunal deciding against it.

However, of all of these actions, education and training should be the starting point.

Beliefs that have been found bu the employment tribunals as being capable of protection by discrimination laws include:

• Ethical veganism

• Left wing democratic socialism

• The sanctity of life, extending to a fervent anti-foxhunting and anti-hare coursing belief

• A genuine and deeply held belief in Scottish independence

• A belief in spirituality and the ability of mediums to communicate with the dead

• Man-made climate change, and the alleged resulting moral obligation to act

• The “higher purpose” of public service broadcasting in promoting cultural interchange and social cohesion

• Public service and the need o engender in others a desire and commitment to serve the community for the common good

• That it is wrong to lie under any circumstance

• The United Kingdom should not be ruled by a hereditary monarch but should be a democratic and secular republic