In the most recent ruling on the ethical veganism case a judge has decided that ethical veganism is a protected belief.

Jordi Casamitjana claims that he was dismissed by the League Against Cruel Sports, an animal welfare charity, after he raised concerns with colleagues that the company invested its pension fund into non-ethical companies that used animal testing in their products.

He subsequently took steps to ensure that his own contributions were going into an alternative ethical fund and emailed his colleagues setting out the steps that he had taken to change his fund.

Mr Casamitjana was subsequently dismissed for gross misconduct relating to his communication with colleagues. He alleges that he was entitled to protection under the Equality Act against being subjected to a detriment on the grounds of his beliefs.

The ruling did not reach any decision on the reason for the dismissal, but it did conclude that veganism qualifies as a philosophical belief that can be protected by the law against discrimination.

The judge decided that ethical veganism satisfied the tests for something to be a philosophical belief which warrants protection under the Equality Act 2010. These are that:

1. The belief must be genuinely held.
2. It must be a belief and not merely an opinion or viewpoint based on the present state of information available.
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
4. It must attain a certain level of cogency, seriousness, cohesion and importance.
5. 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.

The judge commented that ethical veganism is more than just diet and what someone wears rather it is “even down to hobbies, who they choose to live with. It is quite clear that veganism has a major effect on his daily life. I am satisfied overwhelmingly that ethical veganism does constitute a philosophical belief and a protected characteristic.”

Comment

This case, along with the transgender case discussed below, indicates that individuals are increasingly asserting their right to be protected from detriment in relation to the expression of deeply held beliefs.

This may be seen as extending the remit of the Equality Act protection to a wider right to freedom of speech.

Certainly, the cases go far beyond what might be regarded as protection of religious and spiritual beliefs and it is instructive to note in this context that the ACAS Guidance on Religion or Belief discrimination both in its original form and as updated in 2018 focussed heavily on religious issues. The debate is now clearly much wider ranging.

What happened in the transgender case?

Maya Forstator who worked at a thinktank tweeted that a transgender woman cannot change biological sex.

Subsequently her fixed term employment contract was not renewed and she alleged that this was because she had made this statement.

Her tweet was made in the context of opposing government proposals to reform the Gender Recognition Act to allow people to self-identify as the opposite sex.

Ms Forstator stated that “sex is a biological fact, and is immutable. There are two sexes, male and female. Men and boys are male. Women and girls are female. It is impossible to change sex. These were until very recently understood as basic facts of life by almost everyone.”

This brought into play a tension between freedom of speech and offensive language. Judge Tayler decided that Ms Forstator was entitled to express her opinion but this could be done without calling transgender women men.

To do so was to ignore the rights of a transgender person and the “enormous pain that can be caused by misgendering” in the view of the judge.

The fact that her belief would, in the view of the judge, necessarily involve violating the dignity of others who were protected by the Equality Act meant that her belief could not be a protected belief under the Equality Act. This case has been appealed and a hearing is expected later this year.

What happened in the gay cake case?

In this case, an individual sought to buy a cake iced with the words “support gay marriage.” The bakers refused to supply this cake on the basis that they ran a Christian business and consequently could not print the requested slogan.

The Employment Tribunal and the Court of Appeal held that these facts gave rise to discrimination on grounds of sexual orientation by association, something which is unlawful under the Equality Act but this was overturned by the Supreme Court which took a narrower view of the facts.

The Supreme Court analysis was that the bakers would have sold a cake without the slogan to any customer, regardless of sexual orientation and would similarly have refused to sell the cake to any customer, regardless of sexual orientation.

The case was therefore about freedom of speech and not discrimination on grounds of orientation, directly or by association.

What do these three cases show?

There is scope for protection of a wide range of beliefs but tensions arise where rights of groups protected by the Equality Act appear to clash.

Protection of veganism did not offend against other protections, but Ms Forstator’s belief, which the Tribunal found to be sincere, clashed with the rights of transgender individuals.

Religious beliefs will often be in conflict with Equality Act protection afforded to sexual orientation and transgender status and reconciling these rights, when the Equality Act does not recognise any hierarchy of rights, will continue to give rise to challenges for Courts and employers alike.