Hello and welcome to our employment and labour video. My name’s Paul Griffin and I’m Head of the Norton Rose Fulbright Employment Team in London.
In today’s video we are looking at recent cases on protection against discrimination for holding a philosophical belief and what amounts to a philosophical belief under equality legislation.
The Equality Act 2010 protects individuals from discrimination on grounds of their religion or belief. This includes prohibiting direct discrimination, indirect discrimination, harassment and victimisation in the workplace in respect of religion, religious belief, and extends to philosophical beliefs as well. What constitutes a philosophical belief under the Act is a matter of fact in each particular case. An employment tribunal will apply the test set out in Grainger plc v Nicholson in which the EAT held (surprisingly to some) that a belief that mankind must act in relation to catastrophic climate change was protected. The five limb test for a belief to qualify for protection are that:
- The belief must be genuinely held.
- Also, 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.
A couple of recent cases have applied this test and shown the difficulties that tribunals face in making this assessment.
In January of this year, an employment tribunal held that ethical veganism could be protected under discrimination law as a philosophical belief. The case received a lot of press attention.
Unusually for a preliminary hearing, the respondent in this case, the League Against Cruel Sports, conceded on that particular issue. However, the Tribunal had to be satisfied that the respondents had made the concession on a sound basis in accordance with the principles set out in the Grainger case.
Considering the evidence before it, the tribunal decided that the Claimant genuinely and sincerely holds the belief in ethical veganism. The tribunal made the point that its inquiry into this point is limited. It’s not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard. It is sufficient that it is an assertion of their belief.
The tribunal also held that ethical veganism is a belief and not a viewpoint. The belief impacted on what the claimant eats, where he works, what he wears, the products he uses, where he shops and with whom he associates. The tribunal also held that the belief in ethical veganism relates to a weighty and substantial aspect of human life. It’s also a belief which obtains a high level of cogency, cohesion and importance. It’s clearly more than a lifestyle choice, extending to many aspects of the claimants daily life.
Finally, the court held that the belief is worthy of respect in a democratic society and compatible with human dignity, through its environmental benefits.
This case is interesting in that the same employment judge had previously held that vegetarianism did not qualify for protection under the Equality Act. Whilst a belief in vegetarianism was genuinely held and worthy or respect in a democratic society, it failed to meet the other legal hurdles. It was not considered to concern a weighty and substantial aspect of human life and behaviour and had not attained a certain level of cogency, seriousness, cohesion and importance.
The individual’s claim in the ethical veganism case is now proceeding to a full hearing, to determine whether or not the claimant was subjected to discrimination on the ground of his philosophical belief.
Whilst veganism is compatible with human dignity and is not considered to conflict with the right of others, other recent cases relating to a lack of belief in transgenderism show the difficulty of conflicting beliefs.
In one case, an employment tribunal held that a Christian doctor, engaged to carry out health assessments for the Department for Work and Pensions, was not discriminated against on the grounds of religion or belief for refusing to address transgender patients by their chosen pronoun. The claimant's Christianity was a protected belief. However, the tribunal held that a lack of belief in transgenderism and indeed a conscientious objection to transgenderism, are incompatible with human dignity and conflict with the rights of others.
In another case, a researcher’s contract with the Centre for Global Development was not renewed after she expressed “gender critical” opinions on line. The core of the claimant’s belief is that sex is biologically immutable. A person's "sex" is a material reality which should not be conflated with gender or gender identity. She believes that while a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004, this cannot change a person’s gender for all purposes. The claimant argued that her belief fell within the five limb test and was important because it is necessary to support her sense of self, her feminism and political activism, as well as the importance of ensuring safe spaces for particularly vulnerable women and girls. However, the tribunal held that the claimant’s view, in its absolutist nature, is incompatible with human dignity and the fundamental rights of others.
What does this mean for employers?
As you can see from these cases, each case is decided on its own facts, and is a subjective decision of the tribunal. It is unlikely that individuals who choose to adopt a vegan diet for health benefits alone, but don’t adopt the other ethical approaches to everyday living, would satisfy the requirements for a philosophical belief. In the case discussed today, ethical veganism permeates all aspects of the claimants life: He will not use products, including medical products and procedures tested on animals; he does not wear any clothes which contain animal products and will avoid sitting on leather seats; he will not allow non-vegan products into his house and will not share a house with anyone who isn’t a vegan; and he won’t travel short distances on public transport to avoid accidental collisions with insects or birds. This element of subjectivity makes it difficult for an employer to know whether an employee has a belief that would fall to be protected under the legislation.
Even if the claimant can prove that their belief is to be protected an employee must still prove either direct or indirect discrimination. Claimants are less likely to be successful in claims for direct discrimination if the employer can show that the rule imposed on the individual applied to all employees. So, for example, in the case of the doctor, the rule that individuals had to be addressed by their chosen pronouns applied to all employees regardless of their individual beliefs.
However, an employee may have a more successful claim for indirect discrimination if they can show that the rule, or the provision, criteria or practice, puts employees who share the employee’s belief at a particular disadvantage – because it limits their ability to act in accordance with it. An employer can justify indirect discrimination by showing that the employer’s rule is a proportionate means of achieving a legitimate aim.
Employers therefore need to be careful that any rules that they impose do not subject to individuals who may hold those philosophical beliefs to a disadvantage. For example, an employer may have to consider the uniforms staff are required to wear and work they may be required to do. So, for example, can a vegan be forced to handle meat in a supermarket?
We understand that at least one of the cases we have referred to is likely to be appealed so we will continue to monitor this interesting area.
This video is intended to provide you with a summary of this case and if you’d like any more information, or have any questions on any aspect of today’s topic, then please don’t hesitate to contact us.