The Equality Act 2010 sets out the right not to be discriminated against on the basis of religion or protected philosophical belief (or lack thereof). A recent slew of decisions reveals a common thread through the approach taken by the Employment Tribunal in determining the question of what constitutes a philosophical belief.
In the leading case of Grainger plc v. Nicholson, the Employment Appeal Tribunal set down the criteria that a claimant needs to satisfy for a philosophical belief to receive protection under the Equality Act 2010:
- the belief must be genuinely held;
- it must be a belief (and 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; and
- it must be worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others.
Whilst these criteria set out a clear starting point for ascertaining what a protected belief is, they left uncertainty about what beliefs are "serious" or important enough to satisfy the requirements. However, recent cases looking at vegetarianism, veganism and an objection to transgender status have helped to shine some light on this.
Vegetarianism – Conisbee v. Crossley Farms Limited
In the Conisbee case, Mr Conisbee, a vegetarian, claimed that he had been bullied by other employees. This bullying had, amongst other instances, included being given snacks by colleagues who later told him (falsely) that they had contained meat. As part of the proceedings, the Tribunal was asked to consider whether Mr Conisbee's vegetarianism amounted to a philosophical belief.
The Tribunal found that Mr Conisbee's belief in this case was not protected, since vegetarianism was merely an opinion that the world would be a better place if animals were not killed for food, and that this fell short of a belief that related to a substantial aspect of human life and behaviours. The Tribunal's reasoning was that the motivations behind and reasons for being vegetarian varied greatly, ranging from ethical objections to taste preferences. Since the opinion only affected an individual's approach to diet, it was more of a lifestyle choice than a belief. The Tribunal contrasted this with the belief of veganism, which it felt had a more cogent and consistent moral principle behind it.
You can read more from Dentons about the Conisbee case in the October edition of our newsletter here.
Veganism – Casamitijana v. League Against Cruel Sports
In this case, Mr Casamitijana alleged that he was dismissed by his employer for "blowing the whistle" in relation to the employer's pension fund's investments that were involved with animal testing. As an ethical vegan, Mr Casamitijana's position was that this amounted to discrimination on the basis of a protected belief.
The Norwich Employment Tribunal considered the issue of whether veganism could be considered a philosophical belief, and determined that it could. It held that the key point to distinguish veganism from vegetarianism, and other similar opinions that had not been found to be protected beliefs, was how the Claimant's belief had become a determinative part of his everyday decisions.
He outlined how he not just amended his diet but disposed of any property that he had that was made of animal products, attempted to encourage others to become ethical vegans and attempted to minimise using transport that would lead to the accidental death of animals and insects. All of these points seemed to lead the Tribunal to conclude that ethical veganism was a belief that had a substantial aspect of human behaviour with a clear, cogent moral basis, in a way that changes to diet that vegetarianism requires do not.
To read more from Dentons' Victoria Albon on the Casamitijana case, please see her comments in HR Grapevine here.
Opinions on transgenderism – Forstater v. CGD Europe
The Claimant in this case worked as a researcher and writer for a public policy think tank. She believed that sex was biologically immutable. She did not believe that there was any possibility of any sex inbetween "male" and "female", or that it was possible to ever change sex. Following vocal comments on this issue on her social media, her employer refused to re-engage her services following the end of her contract. The Claimant sought to have her beliefs on transgender issues as a protected philosophical belief under the Equality Act.
Like veganism, the Tribunal accepted that the Claimant's belief in this case had the potential to be protected as it was a coherent moral principle that affected the Claimant's worldview generally (and not just with regards to one aspect of her life, e.g. like vegetarianism). However, the Tribunal held that the fifth limb of the Grainger principles was not met as this belief interfered with the human dignity and fundamental rights of others. As such, Ms Forstater's "absolutist" approach was not considered worthy of respect in a democratic society.
The key point from this case was the fact that this belief only failed to be protected because of the fifth limb of the Grainger test and that it otherwise was considered to be a belief that was a sufficiently substantial aspect of human life and behaviour. To read more on this case from Dentons' Victoria Middleditch, please see her summary in Dentons' People, Reward and Mobility blog here.
In these cases, there was a distinction between opinions and philosophical beliefs on the basis of whether the issue in question affected the individual's holistic view of the world and not just one narrow aspect of it. Also of key relevance is the impact that the issue has on the rights of other employees and individuals. Whilst all three of these cases are Employment Tribunal decisions, and therefore not binding, the consistency of the approach gives a strong indication of the Tribunal's view in such cases.
Employers should be alive to the issue of discrimination on the basis of philosophical belief and what might constitute a philosophical belief. Special care must be taken when it comes to office "banter" to ensure that no individual is having their personal beliefs, which may be protected, mocked or degraded in a way that could lead to a discrimination claim.
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