Not vegetarianism according to a recent decision of the Employment Tribunal in Newcastle (Conisbee v. Crossley Farms Limited) and yet, in the case of Mr Casamitjana v. League Against Cruel Sports, there is a widely held view that the claimant's "ethical veganism" will be found to be a protected philosophical belief under the Equality Act 2010. That case is currently awaiting hearing. Why might vegetarianism and veganism differ for the purposes of discrimination law?
In the leading case of Grainger plc v. Nicholson, the Employment Appeal Tribunal set down a number of criteria that a claimant needs to satisfy for a philosophical belief to receive protection under the Equality Act 2010:
- 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, be compatible with human dignity and not conflict with the fundamental rights of others.
In the Conisbee case, his employer successfully argued that vegetarianism was no more than an opinion or viewpoint. Mr Conisbee believed the world would be a better place if animals were not killed for food. In support of the employer's position, it was argued that there were too many different reasons why an individual might choose to be vegetarian, ranging from moral objection to personal taste. The judge agreed, finding that the reasons for being a vegetarian differ greatly, whereas the reasons for being a vegan appear to be largely the same. He went on to say that vegans "simply do not accept the practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared, the clear belief that killing and eating animals is contrary to a civilised society and also against climate control". It will be interesting to see whether the Employment Tribunal in the Casamitjana case agrees. The Conisbee case is not binding on other tribunals.
This is not the first time that philosophical beliefs have been subject to scrutiny by employment tribunals. Such beliefs have been diverse. For example, beliefs in climate change, mediums and in the higher purpose of public service broadcasting, as well as an opposition to fox hunting, have all been found to fall within the scope of protection under the Equality Act, whereas beliefs in copyright and anti-transgenderism have not. In each case, tribunals have applied the Nicholson test set out above. In the copyright case, the claimant's belief was found not to form any cogent philosophical belief system and therefore failed to satisfy part (iv) of the Nicholson test. The tribunal in that case concluded that the claimant's objections were purely commercial and designed to protect her own private interests. In the anti-transgenderism case, Dr Mackereth was dismissed after he said he would not address a six-foot, bearded man with a female form of address or pronoun. His position derived from his Christian belief. He alleged after his dismissal that his employer had discriminated against his religious beliefs. The tribunal in that case unanimously concluded that the "lack of belief in transgenderism, and conscientious objection to transgenderism, in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals". Part (v) of the Nicholson test was not satisfied.
On the face of it, the decisions of the employment tribunals in this area appear arbitrary, but in fact the tribunals continue to apply the now established criteria set out in the Nicholson case to determine eligibility for protection. We look forward with interest to the Employment Tribunal decision in the Casamitjana case on whether veganism will qualify for protection under the Equality Act.