27 February, 2020
The media attention surrounding the recent ruling of the Employment Tribunal in the case of Casamitjana Costa v. League Against Cruel Sports has generated an unprecedented level of interest in the apparent decision to offer protection from discrimination and harassment to vegans in the workplace. However, whilst the case is symptomatic of the trend towards affording protection to an increasing number of beliefs, the case may not necessarily be all it first appears. The relevant factor in this case was not necessarily the fact that the claimant was vegan, but the strength of his beliefs and the pervasiveness of the beliefs into all aspects of his life. The Tribunal attempted to clarify this by confirming that protection is afforded to 'ethical veganism' under the Equality Act 2010 as opposed to mere veganism, protecting those who try to exclude all forms of animal exploitation in their lives.
The Equality Act 2010 was introduced in order to set out the legislative framework prohibiting direct and indirect discrimination and harassment in the workplace in respect of religion, religious belief and philosophical belief. Religion, and religious and philosophical beliefs are listed as 'protected characteristics' under the Act. The protection is afforded not only to employees, but those contracted to do work such as apprentices and contractors, and job applicants in a recruitment process. Direct discrimination takes place if an employee or applicant is treated less favorably due to religion or belief. Indirect discrimination takes place where a provision, criterion or practice disadvantages them on that basis without objective justification.
Mr Casamitjana took his ethical veganism extremely seriously. It affected how he conducted his entire life; not only in his food choices, but the clothes he wore and the way he travelled. For example, rather than taking a bus he would walk to avoid crashes with insects or birds on his journey. He even avoided using cash when making payments due to the use of animal products in the newly issued notes, using his bank card as often as possible. He was dismissed by the League Against Cruel Sports on grounds of gross misconduct after telling his colleagues that their pension fund was being invested in companies involved in animal testing. He believed this contradicted the reason for the existence and value of the employer. He raised this with his employer initially, who promised to change the pension fund. However, they later provided their employees with an ethical alternative, which offered worse rates of return than other ethical pension funds on the market and kept the unethical pension fund in place. He felt strongly that the pension fund should have been removed and proceeded to tell his colleagues of the other alternatives on the market that they had not been informed of and was subsequently dismissed. He brought a claim on the basis that he was actually dismissed due to his belief in ethical veganism. The Tribunal accepted that ethical veganism was a protected belief under the Equality Act and his claim succeeded.
The development of case law as to what does and does not constitute a philosophical belief has been an interesting area of development in discrimination law. In order for 'philosophical belief' to be considered a protected characteristic under the Equality Act 2010, it must:
The apparent trend towards expansion of protected beliefs may initially appear to be of concern for employers but this may not be all it at first seems. Whilst some may view it as an expansion, it may also be explained merely as the natural process of interpretation of relatively recent legislation. Also, as can be seen from the Casamitjana case, the necessary degree of adherence to the belief in question for it to acquire protection is extremely high, and therefore, less likely to apply to the vast majority of employees.
The following beliefs have been afforded protection in recent case-law.
In order to attract protection in these instances, they had to be genuinely and clearly held and amount to a clear belief and not solely an opinion. Not all employees inclined to hold these views will meet the required threshold for protection in the workplace. In all these cases, the beliefs in question were pervasive in the employee's life. Additionally, the beliefs had to satisfy the additional requirements of being weighty and concerning important aspects of human life, conduct and behaviour, be worthy of respect in a democratic society and not be incompatible with human dignity and conflict with the fundamental rights of others. As such, there is a strong moral dimension to the process of affording protection, with a number of applications failing on the grounds that they are an affront to human dignity and impinge the fundamental freedoms of others. For example, belief that homosexuality is contrary to God's laws, and lack of belief in, and conscientious objection to, transgenderism, have been held not to amount to protected beliefs on this basis. British Nationalism and membership of the BNP have failed to meet the required criteria, as has belief in Marxist/Trotskyist philosophy.
In conclusion, the decision of the Employment Tribunal in this case does not indicate a desire to protect all or even the majority of vegan employees, but only employees who adhere to such a high level of ethical veganism. This is a high threshold and the chances of employers encountering employees maintaining this degree of adherence to such a belief are extremely low. So whilst noting the possibility of strongly held beliefs attracting protection, and being aware of the potential necessity to accommodate varying beliefs, employers do not need to be overly concerned. In reality, the implications for employers basically amount to little more than the exercise of common sense and a heightened consideration of individual employee needs. Additionally, as a first instance decision, the findings of the Employment Tribunal in the Casamitjana case are not binding in any event.
Practical steps can be taken to reduce potential exposure, such as the review of existing policies and procedures to ensure that they allow for consideration and respect for employees' beliefs and needs. And it is perhaps prudent to refresh your employees' equality and diversity training, remind your employees and managers to respect the views and beliefs of their colleagues and ensure that managers are trained and equipped to manage situations where potential discrimination may arise. If in doubt, treat any belief as if it is protected and take legal advice, and the potential for exposure is vastly reduced.
For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.