“What does the ethical veganism case mean for employers?”

“What does the ethical veganism case mean for employers?”

Tuesday, January 14, 2020

Adam Convisser, Employment Partner

Discrimination law poses a minefield for employers.  And thanks to an Employment Tribunal ruling on 3 January 2020, veganism has entered into the realm of, what some argue, is an already crowded list of characteristics that employers need to handle with care.

In a complex and multi-faceted case, ethical vegan, Jordi Casamitjana is claiming that his employer, The League Against Cruel Sports, dismissed him after he told colleagues that their employer invested pension funds in firms involved in animal testing.

Mr Casamitjana claims he was unfairly disciplined and the decision to sack him was because of his veganism.  His employer says that he was dismissed for gross misconduct.

The substance of the employment claim is still to be determined, but the Tribunal had to decide on a key preliminary issue as to whether veganism is a religion or philosophical belief and therefore a ‘protected characteristic’ under the Equality Act 2010 (the Act).  The Tribunal ruled that it was.

What is a ‘protected characteristic’?

To make a successful claim, an employee must have experienced direct or indirect discrimination or harassment because of one of nine ‘protected characteristics’ listed under section 4 of the Act; namely:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Defining a philosophical belief for the purposes of the Equality Act 2010

The Employment Appeal Tribunal (EAT) in Grainger plc and others v Nicholson UKEAT/0219/09, stated that for a philosophical belief to be considered a religion or belief under section 4 of the Act, the belief must:

  • be genuinely held
  • constitute 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
  • be a belief, not an opinion or viewpoint based on the present state of information available
  • have a similar status or cogency to a religious belief

The EAT also held that the belief does not have to be shared by others to qualify.  Furthermore, science-based beliefs can be protected in the same way faith-based beliefs are.

In Mr Casamitiana’s case, Judge Robin Postle ruled in a summary judgment that ethical veganism satisfied the tests required for it to be a philosophical belief protected under the Act.

The Tribunal will now decide whether Mr Casamitjana was unfairly dismissed.

The consequences of the decision

As society progresses it is expected that new philosophical beliefs will develop.  Ten years ago, it was rare to meet a vegan.  Nowadays, there are around 600,000 vegans in the UK and many more ‘flexitarians’ who incorporate plant-based eating into their diet either for health, environment or animal rights reasons.  These people may not be ‘ethical vegans’; however, many of them may shift their beliefs to become part of this community in the future.

This ruling was not entirely unexpected given that recent cases have suggested a move towards a wider interpretation of what can constitute a philosophical belief and the media have been typically keen to take advantage of the click-bait headlines the idea of ‘discrimination of a vegan’ generates.  However, the guidance set out in Grainger plc and others v Nicholson provides weighty criteria which must be met for a belief to qualify for protection and it is therefore perhaps unlikely that employers will be faced with a flood of successful religion and belief-based discrimination claims any time soon.  It would be a stretch for anyone to claim that a lifestyle choice such as Jediism (yes, this is a real thing) attains a “certain level of cogency, seriousness, cohesion, and importance” and qualifies as “a weighty and substantial aspect of human life and behaviour”.

However, don’t underestimate the Force….

 

If you require advice on discrimination law or any other employment matters please get in touch with Adam Convisser, a Partner in our Employment team.

 

Please note – this article does not constitute legal advice and the position may have changed since the date of this article.