Unprotected opinions versus protected beliefs

A recent tribunal has brought the issue of philosophical beliefs into the HR spotlight, as Fraser Vandal reports. But where is the line?

Unprotected opinions versus protected beliefs

The Norwich Employment Tribunal held in Conisbee v Crossley Farms that vegetarianism is not protected under the Equality Act 2010, but the judgment was more promising for those campaigning to have veganism covered by the Act.

On the face of it, the tribunal's rationale appears sound. To qualify for protection, an individual must:

  • have a genuinely held belief (not just a viewpoint or opinion);
  • it must relate to a weighty and substantial aspect of human life and behaviour; and 
  • it must be worthy of respect in a democratic society, but which does not conflict with the rights of others.

The issue the tribunal identified in Conisbee was that there are various reasons someone may decide to be vegetarian – for example, personal taste, perceived health benefits or lifestyle choice – so it did not meet the requirement for protection. So called ‘ethical veganism’, on the other hand, could potentially qualify for protection. According to the tribunal, there is a “clear cogency and cohesion” in a belief in veganism that is not present in relation to vegetarianism.

In practice, this is a fairly nuanced distinction and it is not surprising that HR teams regularly face difficulties when dealing with philosophical belief cases. The dividing line between an unprotected opinion and a protected belief is often very fine, with certainty on the status of a particular alleged protected belief frequently only being obtained following litigation. Therefore, there will inevitably be a number of alleged beliefs that have not been – and may never be – tested before a tribunal.

The philosophical belief provisions of the 2010 Act could, through time, become much wider in scope. We have already seen a Scottish tribunal rule that a belief in Scottish independence is capable of protection, and so we couldn't rule out a similar challenge in relation to, for example, Brexit. 

Equalities and Human Rights Commission guidance also notes that a belief against man-made climate change could be protected, and we may see cases on this topic given the recent high-profile protests throughout the UK. 

There is no ‘bottom line’ for the number of people who must share a belief for it to be protected and – in theory – a genuine belief held by a single individual could be capable of protection. However, there would obviously be the question of whether a belief held by only one person would relate to a weighty and substantial aspect of human life and behaviour.

While the issue of protected philosophical beliefs has perhaps not historically been high on the HR agenda, recent tribunal decisions – coupled with the prospect of uncapped compensation claims in discrimination cases – are bringing the area more sharply into focus. It is easy to see why opinionated employees who often discuss their views or beliefs at work could be viewed as a problem by HR teams. However, when dealing with such issues, it will be important to consider whether the employee may hold a belief that is capable of protection and whether taking action in relation to their behaviour could result in a claim.

That is, of course, not to say that employees who hold beliefs capable of protection can behave with impunity. Treatment unconnected with an employee's beliefs will naturally not trigger protection – albeit they could still attempt to argue a causal connection in a bid to get a discrimination claim into the tribunal. Employers should therefore consider whether an employee's beliefs may have impacted on their behaviour, to ensure that businesses are not inadvertently caught out by allegations of this nature.

Fraser Vandal is a solicitor at TLT