Shah Qureshi reviews the recent employment tribunal decision that ethical vegans are entitled to protection from discrimination and harassment under the Equality Act 2010.
Shah Qureshi is a partner and head of Irwin Mitchell’s London employment team. He represented Tim Nicholson in Grainger and Joe Hashman in Hashman.
The preliminary decision in Casamitjana Costa v The League Against Cruel Sports , published in full on 28 January, confirmed that ‘ethical veganism’ is a philosophical belief capable of protection under the UK’s discrimination laws.
The Equality Act 2010 gives individuals the right not to be discriminated against, which extends to an individual’s ‘belief’. Under s10 of the Act:
- Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
In relation to the protected characteristic of religion or belief—
a) A reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief
b) A reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.
The concept of protecting a person’s freedom to hold religious or other philosophical beliefs without suffering detriments or discrimination is one that is enshrined in the European Convention on Human Rights and in particular Art 9 on freedom of thought, conscience and religion.
To qualify as a ‘philosophical belief’ under the Equality Act, the belief must satisfy the five criteria set out at para 24 in Grainger plc v Nicholson  and mirrored in the Equality and Human Rights Commission Code of Practice 2011:
- 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
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
In that case, the Employment Appeal Tribunal (EAT) confirmed that a belief in climate change can be a philosophical belief. Mr Nicholson stated his belief is:
"…not merely an opinion but a philosophical belief which affects how I live my life."
He said that his particular belief was that:
"…mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same."
He claimed that this amounted to a philosophical belief and the EAT agreed.
In Forstater v CGD Europe , the claimant failed to satisfy the five criteria set out in Grainger; the refusal to accept that trans women are women was not a belief which was worthy of respect in a democratic society, compatible with human dignity and not in conflict with the fundamental rights of others.
In that case, CGD, a think tank, decided not to re-engage Ms Forstater as a researcher and writer after she posted her views on gender recognition on social media. She believes that there are only two sexes and that it is not possible to change from one to the other, even if the individual obtains a gender recognition certificate.
The employment tribunal judge held that she was entitled to express her opinion on issues such as revising the Gender Recognition Act or reserving some safe spaces for women identified as female at birth. However, he held that she was not entitled to insist on calling trans women men, stating that:
Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others’ dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Ethical veganism as a philosophical belief
The preliminary hearing in Casamitjana Costa was held to determine whether ethical veganism can amount to a philosophical belief. Unsurprisingly, given its core animal welfare ethos, the respondent, the League Against Cruel Sports, did not dispute the point. Nonetheless the tribunal was obliged to take an evidence-based approach and apply the Grainger test.
The Vegan Society defines veganism as:
A philosophy and way of life which seeks to exclude, as far as possible and practical, all forms of exploitation and cruelty to animals for food, clothing or any other purpose.
Veganism has become a popular and recognised way of life, which has found businesses promoting vegan products and restaurants offering vegan options to meet the ever-growing demand for them. It was therefore important for the tribunal to be satisfied as to whether ethical veganism amounts to a philosophical belief for both this case and for future employment and equality cases that may arise.
It is clear that veganism forms a core part of Mr Casamitjana Costa’s way of life. He has dedicated his life to helping animals in need; he does not allow other people to bring non-vegan food into his home; he shaves with an electric shaver powered by a vegan-friendly electricity provider and he will walk to a destination to avoid accidental collisions with insects or birds.
In applying the five-stage Grainger criteria step by step, the judge identified that ethical veganism "…is not simply a viewpoint, but a real and genuine belief and not just some irrational opinion."
He found it "…easy to conclude that there is overwhelming evidence before me that ethical veganism is capable of being a philosophical belief and thus a protected characteristic."
A genuinely held belief
Having read the evidence before him, Employment Judge Postle concluded that he had "…no doubt whatsoever the claimant genuinely and sincerely holds his beliefs in ethical veganism."
The League Against Cruel Sports also conceded that his belief was genuinely held.
A belief and not a viewpoint
It was clear to the judge that ethical veganism has at its core ‘an important moral essential’. He accepted that the claimant still held a ‘belief’ and not merely a viewpoint even if, on occasion, he ‘transgressed’.
A weighty and substantial aspect of human life and behaviour
The judgment points out that ethical veganism has at its heart ‘the interaction of human and non-human animal life’. It finds that this relationship is clearly a weighty and substantial aspect of human life and behaviour, especially given that "...it has sweeping consequences on human behaviour and seeks to avoid the exploitation of fellow species."
A certain level of cogency, cohesion and importance
The tribunal had no doubt that ethical veganism is a belief with a high degree of cogency, cohesion and importance. It referred to the Vegan Society’s definition in reaching this conclusion and highlighted the fact that there is a community within businesses and restaurants that adheres to this ethical principle.
Worthy of respect in a democratic society and compatible with human dignity
The tribunal found that, ‘given modern-day thinking’, ethical veganism does not in any way offend society. The judgment implies that this criterion of the Grainger test requires tribunals to consider what is believed worthy of respect by contemporary society – something which will change over time.
Implications of the ruling
Although this is a non-binding employment tribunal decision, it provides clarity about the scope of ‘religion or belief’ under s10 of the Equality Act, providing new and clear protection for those who suffer discrimination for their ethical veganism beliefs.
Judge Postle said it was ‘easy’ to conclude that ethical veganism is a philosophical belief, suggesting no room for doubt that it falls within discrimination laws.
The tribunal’s acceptance that the claimant still held a ‘belief’ and not merely a viewpoint, even if he sometimes transgressed, is an interesting development and could be tested further in future cases. The judge’s approach is commendable in that it recognises that in today’s society people can still have deeply held beliefs even if sometimes they may not completely adhere to them.
Employers should have regard to this judgment to ensure that they take all steps to avoid differential treatment, particularly against those putting veganism at the core of their lifestyle.
A welcome decision
The decision is welcome if not unexpected. Modern society’s values reach far beyond religion and as beliefs such as ethical veganism guide an individual’s lifestyle, the law should be applied accordingly.
Case law on what amounts to a philosophical belief
Belief in man-made climate change
In Grainger plc v Nicholson , Mr Nicholson successfully argued that his strongly held belief that he has a duty to live his life in a way that limits his impact on the environment is a protected belief.
An employment tribunal held in Hashman v Milton Park (Dorset) Ltd t/a Orchard Park  that a fervent belief that fox hunting is wrong has Equality Act protection. It stressed that not all opponents of fox hunting would be protected but accepted that the employee’s animal rights beliefs affected every aspect of his daily life.
In McEleny v Ministry of Defence , an employment tribunal held that a belief that Scotland has a right to govern itself is sufficiently cogent and important to amount to a philosophical belief.
Vegetarianism is not a protected philosophical belief according to the employment tribunal in Conisbee v Crossley Farms Ltd . The judge held that being a vegetarian is merely a ‘lifestyle choice’ and not ‘a substantial aspect of human life and behaviour’.
In Forstater v CGD , a tribunal found that Ms Forstater’s belief that trans women are not women was not worthy of respect in a democratic society, was incompatible with human dignity and conflicted with the fundamental rights of others.
Casamitjana Costa v The League Against Cruel Sports  ET/3331129/2018
Conisbee v Crossley Farms Ltd & ors  ET/3335357/2018
Forstater v CGD Europe & ors  ET/2200909/2019
Grainger plc & ors v Nicholson  UKEAT/0219/09/0311
Hashman v Milton Park (Dorset) Ltd t/a Orchard Park  ET/3105555/09
McEleny v Ministry of Defence  ET/4105347/2017
This article first appeared in the February edition of Employment Law Journal.