Ethical veganism – is it protected by the Equality Act 2010?
This is the conundrum Mr Casamitjana has put to the employment tribunal after his employer, League Against Cruel Sports, dismissed him.
Mr Casamitjana claims he was dismissed by the League after disclosing that it invested pension funds in organisations involved in animal testing, despite the League being an advocate for animal rights. The League specifically campaigns for the “prevention of animals being persecuted, abused and killed in the name of sport”.
Mr Casamitjana claims that he was discriminated against due to his philosophical belief of ethical veganism, which consists of more than a solely plant based diet and includes supporting animal rights and protecting the environment. Mr Casamitjana explained that ethical veganism impacts his everyday life, such as ensuring his clothes and products do not contain animal products and have not been tested on animals.
However, The League states Mr Casamitjana was in fact dismissed for gross misconduct and failing to follow express management instructions – not due to his veganism. The League explained that the changes to their pension enrolment was due to having to balance their ethical values alongside the legal requirements of auto enrolment that came into effect in 2015, which their previous pension schemes could not provide.
The League has claimed on its website that staff were previously made aware of the changes to their pensions, thus Mr Casamitjana is not bringing a claim for whistleblowing. The League has even gone so far as to suggest that Mr Casamitjana has used the discrimination route in order to circumvent the need for two years’ continuous service which is usually required to bring a claim for unfair dismissal.
One question that the employment tribunal will need to grapple with is, what constitutes a ‘philosophical belief’ as part of the Equality Act 2010?
The Equality Act 2010 confirms that it is unlawful for an employer to engage in a prohibited conduct, such as discriminating against another directly or indirectly or by subjecting another to harassment or victimisation. A claim for such discrimination can even be made by non-employees such as job applicants and ex-employees.
Religion or belief, including philosophical belief, is one of nine protected characteristics covered by the Act. The other protected characteristics are:
- Age
- Disability
- Race
- Sex
- Sexual orientation
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
Particularly relevant to Mr Casamitjana’s case is section 10(2) of the Act which details that:
“Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”
Religion is a common enough concept and is fairly easy to identify. Whereas a philosophical belief is harder to define, but can include concepts such as humanism and atheism. In the case of Nicholson v Grainger PLC and others 2009 (prior to the Equality Act 2010), the employment appeal tribunal concluded that a belief relating to climate change, could in fact constitute a philosophical belief on the basis that the claimant’s beliefs were more than just opinions and had an impact on the way he lived his everyday life.
In coming to this conclusion, the employment appeal tribunal provided guidance on the necessary criteria in determining what constitutes a philosophical belief, and subsequently awarded protection. The philosophical belief must:
- Be genuinely held;
- Not simply be an opinion or viewpoint;
- 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; and
- Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.
- Have a similar status or cogency to a religious belief [but need not be] a fully-fledged system of thought.
- Not necessarily be shared by others.
The Equality and Human Rights Commission Code of Practice has confirmed the validity of the guidance provided in the case of Nicholson, which has since been applied to post Equality Act 2010 cases. By applying the Nicholson guidance, in the case of Olivier v Department of Work and Pensions ET/1701407/13, the tribunal found that the claimant’s belief in democratic socialism, qualified as a philosophical belief.
In summary, to be accepted as a philosophical belief, the tribunal must be satisfied that Mr Casamitjana’s ethical veganism is a genuine belief held by him and not simply his opinion. To do this Mr Casamitjana’s must show that his ethical veganism significantly affects his lifestyle and behaviours.
Mr Casamitjana will also need to prove that ethical veganism holds respect within today’s democratic society and does not impinge on the rights and dignity of others. Mr Casamitjana may possibly attempt to rely on literature and statistics to evidence his claim that ethical veganism has a level of recognition and respect by the public. For example, the fact that in 2018, in the UK alone, there are reportedly more than 600,000 vegans.
Mr Casamitjana’s case, if successful, could have a significant impact on the types of future discrimination claims that could be considered by employment tribunals, whilst also endorsing the importance of the needs of vegans within their employment.
An additional point to note is that there is no statutory cap on the amount of compensation available to a successful claimant in a discrimination claim. Therefore, should the tribunal find that Mr Casamitjana was dismissed due to discrimination against his philosophical belief, compensation from the League could be considerable.
If you are facing an employment issue and need advice, speak to our experienced team by calling 01752 203500 or email me direct via robert.zacal@GAsolicitros.com.
Rob Zacal, employment solicitor