By Gemma Taylor , Firm; Lewis Silkin LLP
Ethical veganism can be a philosophical belief that is protected under the Equality Act, according to an Employment Tribunal (‘ET’) in the widely reported case brought by Jordi Casamitjana. But what does this actually mean in practice for employers?
What is ethical veganism?
Ethical veganism goes beyond diet. Ethical vegans believe that it’s morally wrong to harm or exploit animals for food, clothing or any other purpose. They may also be motivated by environmental concerns, but the central conviction is that exploiting animals is immoral and unethical. Alongside adopting a vegan diet, ethical vegans will try to avoid other practices that exploit animals, such as wearing leather or silk or using products tested on animals.
Are all vegans protected now?
The Employment Judge in this case was ‘satisfied overwhelmingly’ that ethical veganism was a protected philosophical belief, making it unlawful to discriminate against a person because of that belief.
But, this result will not necessarily be the same in other cases.
- This is just an ET decision, so isn’t binding on other ETs.
- When deciding if a claimant has a protected philosophical belief, ETs should judge the claimant’s own belief rather than the general belief in the abstract. We've written recently about the test for a philosophical belief - it must be genuinely held, be more than a viewpoint, relate to a weighty and substantial aspect of human life, and be worthy of respect in a democratic society. Mr Casamitjana is by all accounts a very committed ethical vegan. For example, he tries to avoid travelling by bus because of the risk to insects. His belief clearly affects many aspects of his life and seems to be very sincerely held. This makes it unsurprising that the ET found Mr Casamitjana’s personal belief in ethical veganism to be protected.
- It's also worth noting that the employer in this case (you might think ironically) is the League against Cruel Sports. It did not contest that Mr Casamitjana’s veganism amounted to a protected philosophical belief – but it says that this isn’t why he was dismissed.
- Some vegans are simply following a plant-based diet. This type of veganism is not necessarily protected, because a choice to eat plant-based food, or even an opinion that a plant-based diet is better for health or the planet, is not enough by itself. The key question is whether the diet is driven by an underlying belief or conviction. Other ethical vegans such as Mr Casamitjana may also be protected, but not everyone following a plant-based diet will be.
What is the real impact on employers?
The main areas of impact of ethical veganism being protected are as follows:
Offensive jokes about ethical vegans can be just as unlawful as offensive jokes about religious beliefs. Employers should make sure their policies cover this, although most policies will refer to ‘religion or belief’, which would already encompass ethical veganism.
If you provide food for employees, then you should consider providing a vegan option for any ethical vegans. On the basis of the current law, there’s no absolute legal requirement to provide a vegan option or indeed cater for any other diet based on religion or belief. This is because the provision of food tends to be regarded as a matter of indirect rather than direct discrimination (i.e. a practice which applies to everyone equally but which could put ethical vegans and those following particular diets for religious reasons at a particular disadvantage). Indirect discrimination is not unlawful if it can be justified, and what is justifiable will depend on the circumstances. Larger or well-resourced employers will find it harder to justify not providing a vegan option for ethical vegans. According to the Vegan Society there were 600,000 vegans in the UK in 2019 and numbers are growing rapidly, meaning all employers should bear in mind that a very significant proportion of people are following plant-based diets.
Ethical vegans may object to leather seating or toiletries tested on animals. As with the provision of food, not offering any alternative could be indirect discrimination unless it can be justified.
Ethical vegans may object to investing in companies that exploit animals, for example by conducting animal testing. Employers already face similar challenges with accommodating religious beliefs, such as beliefs about the charging of interest. Again, the provision of pension and other benefits is generally regarded as an issue of indirect discrimination, so a lack of alternative provision can potentially be justified, but many employers are now offering ethical investment options.
Employers may now see more complaints from vegans about these issues, and will need to be careful here. If a vegan is treated badly for complaining they have been discriminated against because of their vegan beliefs, this is likely to be unlawful victimisation. A person can claim victimisation even if their original complaint about discrimination was incorrect (unless this was a false allegation made in bad faith). An ethical vegan might not have actually suffered unlawful discrimination, for example because their beliefs do not necessarily meet the required test, or because the employer’s position can be justified. Nevertheless, if that person complains about discrimination and is then treated badly, this may give them a victimisation claim.
If an employee behaves inappropriately in attempting to persuade colleagues to change their behaviour or belief then employers can take reasonable and proportionate disciplinary action. This is actually the real issue at stake in this case. Mr Casamitjana was dismissed after drawing his colleagues' attention to what he regarded as unethical pension investments. The employer is arguing that he disobeyed a management instruction and was trying to influence staff pension choices inappropriately. Now that the question of whether ethical veganism can be a protected belief has been resolved, the case can proceed to looking at this much more difficult issue.
Finally, for those of you who are choosing to follow a plant-based diet this month…you may not be doing so for ethical reasons which amount to a protected belief, but happy Veganuary!