In Casamitjana v League Against Cruel Sports, a dismissed employee successfully claimed that his ethical veganism belief is protected by the Equality Act 2010. This is in contrast to another recent employment tribunal decision in which vegetarianism was found not to be a protected philosophical belief (Conisbee v Crossley Farms).
In many ways, the decision is not surprising, given that ethical veganism goes much further than vegetarianism. An ethical vegan is someone who opposes the use of animals by humans for any purpose. The claimant, Mr Casamitjana, gave evidence that, as well as not eating meat, dairy, eggs or honey, he does not wear leather, silk or wool, avoids any products developed through animal testing, refuses to visit zoos and will not buy products that use captive animals in their advertisements.
This preliminary issue was not contested by his former employer, the League Against Cruel Sports, again perhaps not surprising given it is an animal welfare charity that describes itself as “no doubt one of the most vegan-friendly employers”.
What sorts of beliefs have discrimination protection?
In the leading case of Grainger v Nicholson, the Employment Appeal Tribunal set down a number of criteria that a claimant must satisfy for a philosophical belief to have protection under the Equality Act. The belief must:
- be genuinely held;
- be a belief (and not an opinion or viewpoint based on the present state of information available);
- 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, be compatible with human dignity and not conflict with the fundamental rights of others.
While not binding on other tribunals, the new employment tribunal decision on veganism highlights that such a belief can have the same legal protection as other religious or philosophical beliefs.
Practical implications for employers
Whether or not someone can claim discrimination protection for their belief will be fact-specific. Simply asserting that they are vegan when that is not their belief will not usually be sufficient.
In addition, in many cases involving belief discrimination, a key question for employment tribunals is not so much whether the claimant has a protected belief, but whether this was the reason for the alleged mistreatment. So, for example, in the current vegan case, the League Against Cruel Sports maintains that its reason for dismissing Casamitjana was gross misconduct and not his vegan beliefs.
Nevertheless, given the potential for claims of direct discrimination or harassment, employers should remind employees of the importance of tolerance of differences not just related to protected characteristics such as race, sex, religion and age, but also wider philosophical beliefs.
Issues of indirect discrimination can also arise. Employers should not require that vegans wear a uniform or use tools made from animal products unless they can demonstrate that this is justified. Tribunals tend to scrutinise policies relating to uniform and appearance more closely than requirements that are health and safety related. Staff canteens may consider providing a vegan food option, and vegan milk alternatives where tea and coffee are offered.
This is an evolving area of law, and future cases are likely to further test the boundaries of the beliefs that are protected. Tribunals have already held that a belief in the sanctity of life (extending to a fervent anti-fox hunting and anti-hare coursing belief) and a belief in the ‘higher purpose’ of public service broadcasting were protected beliefs.
This latest decision may well lead to claims from employees citing other beliefs not previously recognised as protected, although each will need to satisfy the Grainger criteria.
Katherine Pope is a senior associate at Bryan Cave Leighton Paisner