Written by Brabners LLP
Under the Equality Act 2010 it is unlawful to harass or discriminate against somebody in the workplace in relation to their “religion or belief”. Religion or belief is one of nine “protected characteristics” covered under the Equality Act.
The legal definition of “religion” is fairly uncontroversial whereas the legal definition of “belief” continues to be a topical subject. In 2010, the Employment Appeal Tribunal set out guidance to consider when assessing whether somebody holds a ‘philosophical belief’. The guidance stipulates that for a person to hold such a belief, the belief has to meet the following conditions:
- it must be a genuinely held belief;
- not an opinion or viewpoint based on the present state of information available;
- it must be a belief in respect of a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance; and
- it must be worthy of respect in a democratic society, compatible with human dignity and it must not conflict with the fundamental rights of others.
In the recent case of Casamitjana v the League Against Cruel Sports the Employment Tribunal considered whether veganism amounts to a “belief” qualifying for protection under the Equality Act 2010.
So what happened in this case? Read on to find out more!
Mr Jordi Casamitjana worked for League Against Cruel Sports (LACS) as a zoologist, specialising in animal behaviour. When it came to Mr Casamitjana’s attention that his employer’s pension funds were invested in pharmaceutical and tobacco companies which used animal testing, he brought this to the attention of his managers.
Mr Casamitjana felt that nothing was being done about this and when he proceeded to tell other employees, he was disciplined by LACS and subsequently dismissed. He claims that he was dismissed because of his strong ethical vegan beliefs.
Like dietary vegans, ethical vegans eat a plant-based diet but they also go further by actively try to exclude other forms of animal exploitation such as wearing and using products that have been tested on animals.
LACS assert that they sacked Mr Casamitjana on the grounds of his gross misconduct and not his ethical vegan beliefs. Interestingly, LACS did not dispute that ethical veganism amounts to a protected philosophical belief under the Equality Act 2010. Nevertheless, the Employment Tribunal (at a preliminary hearing) decided that it was necessary for the tribunal to determine that point for itself.
Norwich Employment Tribunal did just that and on 2 and 3 January 2020. Judge Robin Postle ruled that he was “overwhelmingly” satisfied that ethical veganism constitutes a philosophical belief in accordance with the above criteria. A ruling regarding the lawfulness of Mr Casamitjana’s dismissal is expected at a later date.
By contrast, in the case of Conisbee v Crossley Farms Limited & Others the Employment Tribunal decided that vegetarianism (as opposed to veganism) was not a philosophical belief qualifying for protection under the Equality Act 2010. In that case, the Employment Tribunal accepted that the claimant was a vegetarian and that he had a genuine belief in his vegetarianism. However, the Employment Tribunal decided that vegetarianism did not “attain a certain level of cogency, seriousness, cohesion and importance” because the reason for being a vegetarian differs greatly. Vegetarians adopt the practice for many different reasons, for example, lifestyle, health, diet, concerns about animal welfare or simple personal taste.
So what does this decision mean for employers and recruiters?
It is important to firstly take note of the fact that this is only a first instance decision, so it is not binding on other Employment Tribunals and each case will depend on its own facts. It will not be sufficient for someone simply to say that they are an ethical vegan to obtain protection under the Equality Act; they will need to show that their particular belief meets the criteria set out above. That being said, the decision in this case could give rise to an increase in claims by individuals are who vegans and who believe that they have been discriminated against because of their beliefs.
The implications of this judgment for employers and recruiters are potentially significant given the growing popularity of veganism. The number of vegans in the UK quadrupled between 2014 and 2019, and with a major UN report claiming that switching to a plant-based diet can help fight climate change, that number is expected to continue to rise.
You should note, in light of the above case, that any bullying or less favourable treatment directed at ethical vegan employees could now be interpreted as harassment in the same way that a racist or sexist comment might be deemed discriminatory action. Therefore, in order to mitigate risk, employers should have processes in place to prevent discrimination occurring in the workplace.
Practical steps that could be taken include:
- Creating and implementing an Equality and Diversity policy.
- Providing staff with training in relation to discrimination and unacceptable behaviours
- Providing employees with details of a contact to whom they can report incidents of discrimination.
- Warning employees that any discriminatory action or remarks could result in disciplinary action.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership