The question of what amounts to a philosophical belief which qualifies for protection under the Equality Act 2010 (the Act) continues to raise difficult issues for the Employment Tribunals.
This highlights the challenges that employers face when having to take decisions about whether privately held beliefs impact on an individual’s suitability for continued employment.
At the beginning of 2020, in what was described as a landmark ruling, an Employment Tribunal Judge in the case of Casamitjana v The League Against Cruel Sports ruled that ethical veganism was a philosophical belief which was protected under the Act.
The test for establishing whether a particular belief should be afforded legal protection sets out five criteria, known as the Grainger criteria, that must be satisfied, namely:
- 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, and compatible with human dignity and the fundamental rights of others.
The Judge in Casamitijana ruled that he was “overwhelmingly” satisfied that ethical veganism constituted a philosophical belief in accordance with the Grainger criteria and that ethical vegans should be entitled to legal protection relating to their belief in the workplace.
In the recent case of Free Miles v The Royal Veterinary College an employment tribunal decided, however, that ethical veganism which includes a belief in a moral obligation to take unlawful action to reduce or prevent animal suffering does not amount to a philosophical belief to be afforded protection under the Equality Act 2010.
The Claimant was a veterinary nurse who was arrested in 2019 in connection with alleged burglaries by the Animal Liberation Front, an animal rights group which endorses law-breaking for their cause. Following her arrest, she was dismissed by her employer for reasons including her connection with the Animal Liberation Front and that she had committed trespass and theft.
The Claimant brought an employment tribunal claim against her employer for, amongst other things, direct and indirect philosophical belief discrimination, relying on her belief in ethical veganism. She argued that the moral obligation to take positive action to reduce or prevent animal suffering - including trespass on private property to expose the animal suffering and the removal of the suffering animals - was included in her belief and should therefore be protected under the Equality Act 2010.
The tribunal found the Claimant’s belief in ethical veganism did not satisfy the 5th stage of the Grainger criteria, and therefore did not amount to a philosophical belief under the Equality Act 2020. This was on the basis that a belief that advocates actions that are unlawful and interference with the property rights of others cannot be worthy of respect in a democratic society.
The tribunal took a strong stance in their judgment, stating:
“The laws of this country are made by its democratically elected representative and have to be observed by all citizens. It is not open to individuals to decide which laws are worthy of respect and which are unjust and can be disobeyed. Any belief that advocates or makes such actions obligatory is not worthy of respect in a democratic society.”
It was made clear, however, that had the positive action encompassed by the Claimant’s belief in ethical veganism been limited to lawful action such as protests and demonstrations, the tribunal’s decision may have differed.
In Casamitjana v The League Against Cruel Sports, where legal protection under Equality Act 2010 was afforded, the Claimant’s belief in ethical veganism did not manifest in illegal action. The judgment in Free Miles v The Royal Veterinary College does not reflect a deviation from the stance that ethical veganism can amount to a protected philosophical belief; in this decision, the tribunal has clearly distinguished between ethical veganism which encompass illegal action and infringement on the rights of others, and ethical veganism which does not.
The direction of travel in recent decisions on this issue has generally been that if employers are looking to promote an EDI agenda which encourages the recruitment of colleagues from a wide range of backgrounds, then it has to do so on the basis that those colleagues can be expected to have a wide range of differing beliefs, some of which will be protected even though they may cause friction and clash with the strongly held views of their colleagues.
However, what the ruling in this case makes clear is that when determining whether any belief system satisfies the 5th stage of the Grainger criteria, whether that belief manifests in illegal action is likely to be highly relevant. This has potential implications for any discrimination claim in which an individual is seeking to establish a protected philosophical belief where their belief calls them to positive action.
In particular, those with environmental beliefs including the positive duty to take action to mitigate the climate crisis have previously succeeded in arguing that their belief qualified as philosophical belief for the purposes of the protection of the Equality Act 2010. One of the potential implications of this ruling is that an individual may lose that protection, however, should their positive action fall foul of the Government’s new laws on peaceful protests which interfere with national infrastructure or disrupt construction of major transport projects.
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