The Rise in ‘Philosophical Belief’ Discrimination Cases
The question of what amounts to a ‘Philosophical Belief’ continues to be a hot topic this year, with the most recent Employment Tribunal decision in January 2020 finding that “ethical veganism” is a ‘belief’ capable of protection. In 2009 in GB a belief in climate change was also found to constitute a ‘Philosophical Belief’.
Belief in ethical veganism and climate change is growing rapidly in Northern Ireland and across Great Britain. Just last month the local NI news was reporting on vegan protesters allegedly taking a pig from a farm as part of the ‘Meat the victims’ movement. Also last month the BBC was again focusing on climate change, reporting that the 10 years to the end of 2019 have been confirmed as the warmest decade on record by three global agencies.
So it feels very timely to take a look at what approach the GB Tribunals are taking in determining whether a belief is protected under equality legislation and what impact this may have for the workplace in NI.
What is a ‘Philosophical Belief’?
In GB, the Equality Act 2010 provides for protection against discrimination based on certain protected characteristics. One of the protected characteristics listed in the Act is religion or belief, which is defined as “any religious or philosophical belief.” Clearly, the Equality Act 2010 does not apply in NI. However, there is similar legislation here in NI. The equality legislation here makes discrimination on the grounds of any “religion or similar philosophical belief” unlawful in the workplace (see the Definition of “Religious Belief” in Article 3(c) of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003). The wording in the NI legislation differs slightly to the Equality Act, with philosophical belief being similar to religion. However, the Fair Employment Tribunal here may interpret the principles set down in GB case law in a similar way. In NI much of the case law focuses on “religion” or “political opinion” which is also covered by the Fair Employment and Treatment Order. We have not been able to identify any cases in NI on ‘philosophical belief’. However, given the rise in philosophical belief cases in GB, it may only be a matter of time before we see one here.
Whether or not a particular religion or belief is capable of protection will generally be decided by the courts. There are a number of GB cases which give guidance. These cases are not binding on NI Tribunals but may be persuasive. The leading GB case is Grainger v Nicholson in which a belief in climate change was found to constitute a philosophical belief. In this case, the Chief Executive left his Blackberry behind in London while on a business trip to Ireland and he ordered an employee to get on a plane and return the device to him. Mr Nicholson, Head of Sustainability at the firm, felt the errand was much more than an executive indulgence: it embodied the contempt with which his boss treated his deep philosophical beliefs about climate change. The Employment Appeal Tribunal established in this case that a belief will give rise to protection where it:-
- is genuinely held;
- is a belief rather than an opinion;
- is a belief as to a weighty and substantial aspect of human life and behaviour;
- attains a certain level of cogency, seriousness, cohesion and importance; and
- is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others.
Ethical veganism – protected
On 3 January 2020, an Employment Tribunal in Norwich found that “ethical veganism” is a ‘philosophical belief’. Therefore, the Tribunal determined that ethical vegans should be entitled to the same protections under GB employment legislation as those who hold religious beliefs. The case, Casamitjana v League Against Cruel Sports, is a first instance decision of the GB Employment Tribunal at a Preliminary Hearing. As such, other GB Tribunals are not bound to follow it and it is not binding on the NI Fair Employment Tribunal. However, it is clearly a notable decision.
The case was brought by Jordi Casamitjana, who is an ethical vegan. That is someone who not only follows a vegan diet but extends the philosophy into other areas of their lives and is against all forms of animal exploitation. Mr Casamitjana argued that his employer dismissed him for having disclosed that his employer invested pension funds in firms involved in animal testing. He asserted that his dismissal was discriminatory because he is an ethical vegan. He argued that he was protected under the Equality Act 2010 under the right not to be discriminated against due to his “philosophical beliefs”. Judge Postle ruled that ethical veganism constitutes a philosophical belief. He found that ethical veganism satisfies several legal tests as set down in the Grainger case, including that it is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others. It is most likely the Judge arrived at this conclusion because of the extensive nature of ethical veganism as a system of thought/life philosophy and not just a diet.
It is important to remember that this ruling concerned Mr Casamitjana’s own belief system only. In the written judgment handed down on 27 January 2019, the Judge concluded that “there is no doubt that the Claimant [Mr Casamitjana] personally holds ethical veganism as a belief. He has clearly dedicated himself to that belief throughout what he eats, where he works, what he wears, the products he uses, where he shops and with whom he associates. It clearly is not simply a viewpoint, but a real and genuine belief and not just some irrational opinion.” It does not, therefore, automatically mean that all vegans are now protected by equality legislation. In fact, it is arguably unlikely that veganism itself would be protected.
Vegetarianism – not currently protected
On 6 September 2019, the Norwich Employment Tribunal determined that vegetarianism is not capable of amounting to a philosophical belief because it is not about human life and behaviour and lacks sufficient cogency and cohesion. (Conisbee v Crossley Farms Limited). Again the Conisbee case was a first instance Employment Tribunal decision. This means that there is still scope for it to be appealed, or for others to pursue a similar claim and instead succeed in arguing that vegetarianism should be a protected philosophical belief. Clearly any future decisions will depend on the specific facts of each case.
The Central London Employment Tribunal ruled in December 2019 that Maya Forstater’s belief that “men cannot change into women” was not a philosophical belief capable of protection under the Equality Act 2010. This was because the Judge said that Ms Forstater was absolutist in her view of sex and that her approach was “not worthy of respect in a democratic society”.
Practical Lessons for Employers
- Remember that the Fair Employment and Treatment Order (as amended) extends the definition of religious beliefs to cover similar philosophical beliefs.
- Educate managers and employees about the meaning of what can constitute a philosophical belief to minimise the risk of discrimination and harassment claims.
- Keep an open mind about what could amount to a ‘belief’.
- Review policies and procedures to check whether they may offend or put groups of employees with certain beliefs at a disadvantage.
- When organising workplace events or activities, check that you do not arrange anything which may offend or put groups of employees with certain beliefs at a disadvantage. (For example you could consider providing food suitable for vegans in canteens and at meetings/events where food is provided. You could consider providing vegans with suitable alternatives to uniforms using animals ((e.g. wool, leather) should the issue arise).
Joanne Lightburn, Senior Associate Solicitor
Jones Cassidy Brett Solicitors