Whilst most readers may be familiar with discrimination cases relating to the more common types of “protected characteristics” such as sex, race, age and disability, an individual’s “philosophical beliefs” are also protected under the Equality Act. However, what constitutes a “philosophical belief” is less clear!
Historically, there have been very few cases relating to an individual’s beliefs. However it is now apparent, perhaps from more rigorous employment tribunal reporting or from individuals’ greater knowledge of the law, that discrimination based on a person’s belief is very much something that employers should take seriously.
Over the past few years we have seen successful “belief” discrimination claims from individuals with beliefs relating to anti fox hunting, democratic socialism, climate change, Scottish independence and even refusing to lie to customers. On the flip side, examples of “belief” cases which failed to convince a tribunal include cases relating to beliefs that children shouldn’t be adopted by same sex couples, the US and UK governments were behind 9/11 and 7/7 and that the poppy should be worn in November for remembrance purposes. Interestingly, a belief in a political party has also been deemed not to be a philosophical belief. This particular point has been challenged by the European Court of Human Rights which has ordered the UK to change its approach to the law to incorporate political beliefs. Six years down the line, that has yet to happen.
What is the test?
So how exactly does a tribunal decide on whether an individual’s belief meets the high bar of being worthy of protection?
The test comes from the 2010 Employment Appeal Tribunal case of Granger PLC v Nicholson. In this case, the EAT set out in detail the test that a claimant must satisfy in order for their philosophical belief to be protected under the Equality Act. The guidance from the Nicholson case states as follows:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
As you can see from the above, a philosophical belief must overcome a number of hurdles in order to gain protection under the Equality Act. Cases such as the 9/11 cover up belief could never pass every strand of the test above and, indeed, failed on the “must attain a certain level of cogency, seriousness, cohesion and importance” test.
With an estimated 375 million people in the world estimated to be vegetarian, it is clear that, for many, the belief is genuinely held and not merely an opinion. However, is such a belief enough to satisfy the test for legal protection? This was the question that Employment Judge Postle had to grapple with in the recent case of Conisbee v Crossley Farms Limited.
Mr Conisbee was a waiter/barman who was employed by Crossley Farms for a period of four months until his resignation in August 2018. Mr Conisbee claimed that he was discriminated against for being a vegetarian, whilst Crossley Farm’s position was that Mr Conisbee resigned following a telling off for not ironing his shirt. Whether vegetarianism was a philosophical belief under the Equality Act was key to this claim, as Mr Conisbee did not have the two years’ service to enable him to bring a constructive unfair dismissal claim.
In its judgment, the Tribunal confirmed its position that vegetarianism did not satisfy the philosophical belief test in full and, therefore, could not be classified as a philosophical belief worthy of protection. The Tribunal confirmed that, whilst it was clear that Mr Conisbee had a strong held belief in vegetarianism, along with his opinion that the world would be a better place if animals were not killed for food, it was “simply not enough to have an opinion based on some real, or perceived, logic”. In addition, the tribunal pointed to the human life and behaviour test, noting that “vegetarianism is not about human life and behaviour, it is a lifestyle choice”. Finally, the Tribunal stated that the reason for being vegetarian can differ greatly between individuals. Reasons for choosing to be vegetarian could include health reasons, dietary reasons and/or concerns about animal treatment. As a result of these different beliefs, vegetarianism lacks a clear cogency and cohesion.
Taking all of the above into consideration, the Tribunal ruled that vegetarianism could not be a philosophical belief worthy of protection and that Mr Conisbee’s claims must fail.
In an interesting footnote to the Conisbee judgment, Employment Judge Postle noted that, unlike vegetarianism, veganism may be a philosophical belief capable of gaining protection. Judge Postle’s reason was that vegans largely have the same reason for choosing their lifestyle. A quote from the judgment reads “Vegans simply do not accept the practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared, the clear belief that killing and eating animals is contrary to a civilised society and also against climate control. There you can see a clear cogency and cohesion in vegan belief, which appears contrary to vegetarianism”.
The above stance is one that seemed to be supported when the Equality Act was being drafted, however the government at the time did not share that view. Ultimately, however, it is a matter for the courts and tribunals, not the government.
We might, however, not have to wait for long for the first tribunal judgment on this matter. I understand that the case of Casamitjana v League of Cruel Sports is due for a preliminary hearing in October 2019. The case hangs on whether Mr Casamitjana was discriminated against by the League for his vegan beliefs. Mr Casamitjana raised issues regarding the League’s pension scheme being invested into companies involving animal testing. Mr Casamitjana was ultimately dismissed from his role with the League and his vegan belief is at the crux of his employment Tribunal claim. The result of this judgment will be tweeted about from the @BPE_Solicitors twitter account.
What does this mean for you or your business?
It should be noted that this judgment is a first instance employment tribunal judgment and does not need to be followed by other tribunals. It is quite common for tribunals to disagree with each other on such points, and as a result, a claimant may be successful in such an argument at a different tribunal. As a result, this judgment should be used for guidance only at this time and legal advice should be sought should such a situation arise.
The employment tribunal judgment is available here.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.