Ethical veganism on the menu of protected characteristics

As Veganuary came to a close, we've been reflecting on the Employment Tribunal’s high profile ruling that ethical veganism is a “philosophical belief” and qualifies for protection from discrimination under the Equality Act. This decision has left lawyers and employers contemplating its potentially significant effects on employment and the workplace and the provision of goods and services.

Mr Jordi Casamitjana claims he was unfairly dismissed by the League Against Cruel Sports, an animal welfare charity, for his beliefs in ethical veganism. He raised concerns that the charity’s pension scheme was investing in companies involved in animal testing. The charity maintains his dismissal was in no way linked to his belief in ethical veganism.

The Grainger test for what constitutes a “philosophical belief”

As the concept of “philosophical belief” is not defined in legislation, it is left to the courts and tribunals to interpret these fundamental concepts. The case law in this area has sparked much controversy with some arguing that the lack of a legislative definition has created unexpected and inconsistent outcomes as judges must inevitably resort to applying value judgements. 

Some clarity was established in Grainger v Nicholson where the EAT laid out a five-limb test, namely that the belief must be: 

  1. genuinely held. 
  2. a belief, not an opinion or viewpoint. 
  3. a belief as to a weighty and substantial aspect of human life and behaviour. 
  4. attain a certain level of cogency, seriousness, cohesion and importance.
  5. worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

It is perhaps unsurprising that the judge found that Mr Casamitjana’s belief satisfies the test - ethical veganism clearly permeates all aspects of his life. For example, he avoids using household products or medication which exploit animals, he does not buy or consume products which use captive wild animals in advertising, he doesn’t travel short distances on public transport so as to avoid accidental crashes with insects or birds (and when he does take public transport, he avoids sitting on leather seats or holding on to leather straps), and he avoids social gatherings which serve non-vegan food.

In reaching this decision, the judge recognised the distinction between veganism, which includes those who believe in a plant-based diet, and ethical veganism, which extends to those who try to exclude all forms of animal exploitation from their lifestyle.

But what about vegetarianism?

You may recall that the same judge held in a recent case (Conisbee v Crossley Farms Ltd & others) that a belief in vegetarianism did not qualify for protection under the Equality Act as it did not satisfy limbs 3 and 4 of the Grainger test. The judge said that being vegetarian is simply a lifestyle choice and it does not attain “a certain level of cogency, seriousness, cohesion and importance…the reason for being a vegetarian differs greatly amongst vegetarians, unlike veganism where the reasons for being a vegan appear to be largely the same”.

But is veganism really more cogent and cohesive than vegetarianism? Some people are vegans purely for personal health reasons, others for environmental and/or animal welfare factors. Perhaps this is an example of a potentially inconsistent consequence arising from a lack of a legislative definition of “philosophical belief”.

Potentially wide-ranging implications

This case demonstrates that the scope of what counts as a “philosophical belief” is potentially very wide-ranging. You can see how a genuinely held belief in Brexit or Remain (which it is not difficult to imagine could create hostilities in the workplace) might satisfy the Grainger test. Indeed, in recent cases, the employment tribunal has held that a belief in Scottish independence and the belief that the UK should not be ruled by a hereditary monarch, were capable of amounting to a “philosophical belief”.

But the implications of this case will also apply beyond employment, in areas such as education and the supply of goods and services. So, for example, should school canteens be expected to provide vegan options?

Causation is the real battleground

It is important not to forget that this is only one leg of the race – once an employee has established that they hold a “philosophical belief” which is worthy of protection from discrimination, they must then establish causation. In other words, the employee must establish that the reason for their dismissal was directly or indirectly because of their philosophical belief.

Out of all the cases dealing with belief and religion in the workplace, only one claimant has succeeded in establishing causation, namely a gardener who was found to have been dismissed from his employment because of his intense anti-fox hunting stance (Hashman v Milton Park). It will be interesting to see whether Mr Casamitjana can overcome this hurdle at the full hearing next month. Watch this space.