The question of what amounts to a 'philosophical belief' under the Equality Act 2010 has been a hot topic in 2019, with Tribunals considering whether or not 'beliefs' including vegetarianism, the sanctity of copyright and Scottish Independence (see our previous article here) are capable of protection. In advance of a forthcoming hearing to consider whether or not veganism is capable of protection, we take a look at what approach the Tribunals are likely to take when determining whether or not a belief is capable of protection under the Act.
The Equality Act (Act) provides for protection against discrimination based on certain personal characteristics. The characteristics which are covered by the Act and which give rise to this protection are known as "protected characteristics".
One of the protected characteristics listed in the Act is religion or belief, which is defined as "any religious or philosophical belief." However, not all religions or beliefs will be covered by the Act and give rise to protection from discrimination. Whether or not a particular religion or belief is covered will generally be decided by the courts, and there are a number of cases which give guidance on this. The leading case is Grainger v Nicholson, where the Employment Appeal Tribunal established that a belief will give rise to protection where:
- it is genuinely held;
- it is a belief rather than an opinion;
- it is a belief as to a weighty and substantial aspect of human life and behaviour;
- it attains a certain level of cogency, seriousness, cohesion and importance; and
- it is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others.
Is a belief in Scottish independence capable of protection under the Act?
Yes. In May 2018, the Glasgow ET held in McEleny v Ministry of Defence that a belief in Scottish independence (but not in the social democratic values of the Scottish National Party) could amount to a philosophical belief. The Glasgow Tribunal applied the test set out in Grainger v Nicholson to find that a belief in Scottish independence was:
a genuinely held belief which was not merely an opinion or viewpoint based on the present state of information available;
- sufficiently serious, cogent and important to be protected because national sovereignty and self-determination were 'weighty and substantial aspects of human life';
- sufficiently coherent (in the sense that it was capable of being understood); and
- worthy of respect in a democratic society and not incompatible with human dignity and in conflict with the fundamental rights of others.
What about a belief in vegetarianism?
No. However, in September 2019, in the first known judgment specifically on this point, the Tribunal held in Conisbee v Crossley Farms that vegetarianism was not a protected philosophical belief - because it is not about human life and behaviour and lacks sufficient cogency and cohesion.
In Conisbee, the Claimant claimed he had been harassed, examples include being given snacks containing animal products to eat and being called 'gay' because he was a vegetarian. Nevertheless, whilst the Tribunal accepted that the Claimant was vegetarian with genuine belief in his vegetarianism, they found that:
- it was his opinion or viewpoint that that the world would be a better place if animals were not killed for food. The Tribunal did not find this to be a belief capable of protection because it is not enough to have an opinion based on real or perceived logic;
- vegetarianism is not about human life and behaviour, it is a lifestyle choice – and, in the Claimant's view, believing that the world would be a better place if animals were not killed for food. Whilst the Tribunal found this to be an admirable sentiment, they did not find that it related to a weighty and substantial aspect of human life and behaviour;
- whether the Claimant's belief attained a certain level of cogency, seriousness, cohesion and importance should not be a high bar;
- nevertheless, the reasons for being vegetarian differs greatly, unlike veganism where the reasons for being a vegan appear to be largely the same.
What about a belief in the sanctity of copyright?
No. Most recently, the Court of Appeal (CA) held in Gray v Mulberry Company (Design) Ltd, that the Claimant's belief in "the statutory human or moral right to own the copyright and moral rights of her own creative works and output, except where produced on behalf of an employer" was not capable of protection under Act.
The Claimant in this case had refused to sign the copyright agreement provided to her on commencement of employment, claiming that it would interfere with her own work as a writer and film-maker. Although Mulberry agreed to amend the Copyright Agreement to exclude personal works, the Claimant still refused to sign and was ultimately dismissed with notice.
The Tribunal applied the test in Grainger and found that the Claimant did not hold a philosophical belief capable of protection under the Act. Whilst it was accepted that the Claimant strongly believed in the right of ownership to her own creative input, the Tribunal did not accept that she held that belief as any part of philosophical touchstone to her life. The EAT agreed with the Tribunal that the belief was not sufficiently cohesive to form any cogent philosophical belief to achieve protection under the Act.
The CA also dismissed the Claimant's appeal, but on the basis that it was irrelevant whether the Claimant's belief amounted to a philosophical belief within the meaning of the Act because it did not put the Claimant at a disadvantage. On the facts, the CA found there was no causal link between the Claimant's belief and either her refusal to sign the copyright agreement or Mulberry's decision to dismiss her (because her refusal to sign and thus her dismissal was driven by her concern that the wording of the relevant clause leaned too far in Mulberry's direction or failed to sufficiently protect her own interests).
What about veganism?
TBC. In the forthcoming case of Casamitjana v League Against Cruel Sports, the Claimant was dismissed for gross misconduct because he drew attention to the fact that the charity invested pension funds in firms involved with animal testing. As an "ethical vegan", the Claimant said that veganism affects all aspects of his life and not just his diet, in that he excludes all forms of animal exploitation from his lifestyle. Initially, the charity denied that ethical veganism was a philosophical belief and requested a preliminary hearing for the Tribunal to consider the point. A hearing was listed to take place in March 2019 but subsequently vacated when the charity conceded that ethical veganism was a philosophical belief. However, despite this concession, the Tribunal Judge decided that it is important for a judicial decision to be made on this point and a hearing date was set for October 2019 before being postponed to January 2020.
The law around what constitutes a 'belief' for the purposes of the Act looks likely to be an area that is going to continue to develop, especially as societal values change. For employers, it will be important to keep an open mind as to what could amount to a 'belief' under the Act (including educating managers of this, so that they can manage any inappropriate behaviour, such as that in Conisbee). Employers should also keep a "watching brief" on the impact of policies, practices and procedures to check whether they may offend or cause difficulties for groups of employees with certain beliefs – even where such beliefs are not obviously capable of protection under the Act.
Although the Claimant in Gray was unsuccessful in asserting that her belief in copyright was capable of protection, the CA commented that the decision is not to be taken as saying that a belief in copyright can never be capable of protection under the Act, because, as the Tribunal acknowledged, it might apply in different circumstances (such as perhaps if there was an individual who gave up time and resources to lobby and campaign for a heightened awareness of copyright theft and an increase to the legal protection against it).
Also, whilst the Tribunal in Consibee did not find that vegetarianism amounted to a "philosophical belief", it's only a first instance decision with no precedent value, which means that there's still potential for it to be appealed, or for others to bring a similar claim. It's also worth noting that the Claimant's belief was characterised as "the world would be a better place if animals were not killed for food", to which it applied the Grainger criteria. Arguably, the correct characterisation would have been "it is wrong and immoral for humans to eat animals". The Tribunal also held that vegetarianism is not about human life and behaviour, but is a lifestyle choice. However, if the Judge had characterised the Claimant's belief as "it is wrong and immoral for humans to eat animals", then it's unlikely that it could be said this is not about human life and behaviour.
It will be interesting to see what reasoning the Tribunal applies when it considers the Casamitjana case, especially when the Tribunal noted in Conisbee that it could see a clear cogency and cohesion in vegan belief, contrary to vegetarianism (which has many differing and varying reasons for adopting vegetarianism).