Veganism as a protected belief: the upshot for employers

This article was first published in the January/February 2020 issue of PLC Magazine where it is also available.

In a decision widely reported in the media as a landmark ruling, an employment tribunal has found in a preliminary hearing that Mr Jordi Casamitjana’s belief of ethical veganism is protected as a philosophical belief under the Equality Act 2010 (2010 Act). (Casamitjana v League Against Cruel Sports ET/3331129/2018)

Mr Casamitjana is awaiting a final hearing on the merits of his claim to determine whether he was dismissed and discriminated against due to his ethical veganism beliefs.

While the decision is perhaps not as surprising as has been reported, it may precipitate an increase in discrimination claims by ethical vegans and others holding philosophical beliefs. As a result, employers need to consider a number of practical implications of the decision.

Legal principles

The right to hold a religion or belief is enshrined in Article 9 of the European Convention on Human Rights. Religion and belief are also protected characteristics under section 4 of the 2010 Act. Religion is defined as “any religion and a reference to religion includes a reference to a lack of religion” and belief is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief” (section 10, 2010 Act). The leading case of Grainger plc v Nicholson provides further guidance (see below - The Grainger criteria).

The Equality and Human Rights Commission’s Employment Statutory Code of Practice (the Code) says that while the right to a religion or belief is absolute, the right to manifest that religion or belief may be limited. However, the Code acknowledges that the difference between holding a religion or belief and its manifestations is not always clear, and advises that placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination.

The decision

The decision in Casamitjana is not really surprising and, arguably, this has long been the direction of thinking. In an early draft of the Code, an ethical vegan was described as a person who “eschews the exploitation of animals for food, clothing, accessories or any other purpose and does so out of an ethical commitment to animal welfare”, and was suggested as an example of someone likely to hold a philosophical belief. Given Mr Casamitjana’s witness statement, which details carefully and at length his ethical vegan beliefs and the manifestations of those beliefs, this weightiness and cogency undoubtedly tipped the balance in favour of a philosophical belief.

Scope of protection

Casamitjana is not binding on other employment tribunals. When assessing whether a belief meets the Grainger criteria in any future legal claim, a tribunal must assess the particular facts of the case and the claimant’s evidence of their belief. Therefore, Casamitjana does not mean that all ethical vegans will be able to complain of discrimination. However, it does heighten awareness of the scope for challenge.

The principles in Casamitjana, and the examples of Mr Casamitjana’s level of observance and adherence to his belief, can be applied quite easily to other beliefs such as climate change and environmentalism. With reports that the new UK bank notes are being challenged as unlawful because of their use of animal fats, this heightened awareness is set to continue.

Implications for employers

Employers should be prepared for employees to pay closer attention to their approach, practices and policies in light of the increased risk of challenge. Employees may raise issues and concerns in the workplace in a variety of different areas.

Conduct. Employers that place arbitrary limits on an employee’s right to manifest their belief may be at risk of unlawful discrimination claims. Equally, employees should not be harassed or embarrassed because of their views, nor should an employee harass others who do not adhere to the same beliefs.

Food. Employees may be expected to store their food in shared fridges. The Code suggests that employers should supply a separate fridge shelf to address, for example, an orthodox Jewish worker’s religious belief that their food should not come into contact with pork products. It could be advisable to make the same accommodation for a vegan person. Workplace restaurants and caterers for work functions are increasingly providing vegan options. Employers that do not currently provide vegan options may face employee demands to do so.

Workwear. Employers may require employees to wear uniforms or may provide employees with clothing, hats and footwear. Requiring an employee to wear leather or other materials from animals might amount to indirect discrimination. To avoid indirect discrimination, the Code advises that any strict dress codes should be justifiable as a proportionate means of achieving a legitimate aim, such as health and safety. Where an employee has vegan beliefs, it seems likely that a non-animal product alternative to the uniform should be explored and provided, if proportionate.

Travel. Beliefs about the need to reduce travel or to use of certain forms of transport may arise; in Mr Casamitjana’s case this included modes of transport that are more likely to injure animals or that harm the planet. Rather than requiring attendance at meetings or conferences in person, an employer may be asked to offer remote attendance or to critically assess what travel is essential.

Benefits. There is scope for Casamitjana to have an impact on employee benefits, such as the choice of funds in pension investments. Employees may want more ethical options or object to providers of funds that they do not regard as meeting ethical investment standards, which is where Mr Casamitjana’s claim started. This may increase with more evidence about environmental, social or governance ratings becoming available.

Unlike disability discrimination, the 2010 Act does not impose a reasonable adjustments obligation on employers to accommodate philosophical beliefs. However, both the Code and the way in which indirect discrimination operates, which is to seek to balance the effect on individuals against the employer’s requirements, suggest that employers should be supportive and find solutions where possible and available.

Employers would be well advised to take a practical and open approach to any employee questions and concerns that could be linked to their vegan beliefs. Proactive steps are likely to be unnecessary: Casamitjana does not mean that employers must discard leather furniture or remove meat options from the workplace canteen. However, questions and concerns should be taken seriously, and the discrimination risk is an additional consideration.

The Grainger criteria

The Employment Appeal Tribunal in Grainger plc v Nicholson held that, to be protected as a philosophical belief under the Equality Act 2010, the belief 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 (UKEAT/0219/09).

The criteria are stringent and ensure that philosophical beliefs share the same qualities.