A number of recent cases (see our blog post here) have grappled with the question of what amounts to a protected philosophical belief for the purposes of discrimination law, reflecting a growing trend of claimants seeking to push the boundaries (in some cases because of a lack of eligibility to claim unfair dismissal). Previous case law has established that, to be protected, a belief must be (i) genuinely held, (ii) not merely an opinion or viewpoint based on the present state of information, (iii) as to a weighty and substantial aspect of human life and behaviour, (iv) attain a certain level of cogency, seriousness, cohesion and importance, and (v) worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

At a preliminary hearing the tribunal in Casamitjana v League Against Cruel Sports ruled that the claimant’s ethical veganism was a protected belief under the Equality Act 2010.  The decision sets out in detail the significant and perhaps relatively unusual extent to which the claimant adjusted his lifestyle to reflect his beliefs, affecting his social life, work choice, travel, payment for purchase, and consumption of food, clothing and medicines.  In light of this, it was not surprising that the tribunal found it easy to conclude that the claimant’s belief satisfied the above tests.  The ruling does not mean that every individual adopting some vegan practices inevitably will be able to satisfy the requirements;  each case will be judged on its own facts.  The case has since settled without a tribunal ruling on liability.

Following this case, the Vegan Society has published guidance for employers on the types of accommodations that vegans may need in the workplace. This suggests that employers should consider:

  • sending out a ‘dietary requirements’ sheet for catered events, ensuring vegans can request appropriate food
  • designating food storage areas for vegans, for example a shelf in the fridge above non-vegan foods
  • providing milk alternatives for tea and coffee making
  • ensuring vegans have access to vegan-friendly clothing, such as synthetic safety boots
  • exempting vegans from attending corporate events such as horse racing or barbeques
  • exempting vegans from participating in signing off the purchase of non-vegan products
  • supporting vegan employees to discuss their pension investment.

Employers should also take appropriate steps to deal with any harassment or ‘banter’ on the basis of such beliefs and provide training for staff.

In contrast, an employment tribunal has ruled that a claimant’s “absolutist” belief that being female is an immutable biological fact and that a transwoman is not in reality a woman, even if the individual has changed their legal sex under the Gender Reassignment Act, was not a protected “philosophical belief” (Forstater v CGD Europe).

At a preliminary hearing, the tribunal found that the belief satisfied most of the tests laid down by case law for protection to apply, namely that it was genuinely held; it was a belief, not merely an opinion based on the present state of information; it was a belief as to a weighty and substantial aspect of human life and behaviour; and it attained the necessary level of cogency and cohesion.  However, the judge ruled that it failed the test of being worthy of respect in a democratic society.  This was because it was a core component of the claimant’s belief that she would continue to express her views and refer to a person by the sex she considered appropriate, notwithstanding the pain and offensive environment caused.

Arguably the ruling blurs the distinction between holding a belief, which might be protected, and its manifestation, which might not depending on the circumstances.  The ruling is being appealed.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819