Ethical veganism is a protected belief, rules Employment Tribunal

4 January 2020 by Samuel March

Casamitjana v The League Against Cruel Sports (judgment pending)

In what multiple commentators have hailed as a landmark legal case, Norwich Employment Tribunal found that the Claimant’s “ethical veganism” is a philosophical belief and therefore a protected characteristic for the purposes of section 10 of the Equality Act 2010 (“s.10”) following a preliminary hearing on 2^nd and 3^rd January 2020. 

The judgment is unlikely to be available for some time, so it is not yet possible to analyse the Tribunal’s reasoning, but the Hearing Bundle and Claimant’s Written Submissions of Claimant’s Counsel have been made available online by his solicitors which gives a clear indication of how the issue may have been decided.

Background

The Claimant, Mr Jordi Casamitjana Costa, is an ethical vegan, which means he not only follows a vegan diet but also opposes the use of animals for any purpose. The Respondent, The League Against Cruel Sports, is an animal welfare charity that campaigns against sports such as fox hunting, stag hunting and hare coursing.

The Claimant was engaged by the Respondent from 2004 — 2007, and then again from 29 August 2016 — 6 April 2018.

Whilst employed by the Respondent, the Claimant made enquiries regarding the Respondent’s pension funds and concluded that they were invested — in his view — unethically, as money was going into companies which harm animals. This offended the Claimant’s beliefs and he took steps to ensure that his contributions were invested in an alternative “ethical” fund. Counsel for the Claimant submitted that he also believed his discovery would likely similarly offend the beliefs of his colleagues, whom he suspected were unaware.

As such, the Claimant sent a number of emails to colleagues. Particularly significant was an email sent to all of the Respondent’s staff (see pp. 277-283 of the Hearing Bundle) notifying them of his discovery, the steps he had taken to “change [his] fund” and attached a table of his own creation containing 10 types of fund choices and setting various personal opinions.

In their Grounds of Response at [46], the Respondent submits that the Claimant’s emails “give financial advice in breach of an express, and repeat instruction given to the Claimant not to do so.”

In light of this, the Claimant was dismissed by the Respondent for gross misconduct. He now pursues complaints, inter alia, of indirect discrimination, direct discrimination or harassment and victimisation by reference to his belief in ethical veganism. In particular, he relies on a line in the Respondent’s dismissal letter which stated

Based on your understanding and belief, if given the opportunity, you will act in the same way … I consider the email you sent to staff biased because of your ethical principles and could influence them to change their pension arrangement.

Ethical Veganism

Veganism, according to the Vegan Society, “is a way of living which seeks to exclude, as far as is possible and practicable, all forms of exploitation of, and cruelty to, animals for food, clothing or any other purpose.”

The philosophy of “ethical vegans” can be clearly distinguished from “health vegans” who choose dietary veganism for reasons related to individual health. In the written submissions at [14], counsel for the Claimants explained that ethical veganism is different because

at its heart lies a moral imperative, namely the recognition of non-human animals as sentient beings it is morally wrong to exploit or harm.

Protected characteristic?

A prerequisite for the Claimant’s case to succeed is for his ethical veganism to be a protected characteristic for the purposes of the Equality Act 2010. This was the matter in issue at the preliminary hearing.

The Act provides protection against discrimination based on certain characteristic, referred to collectively as the “protected characteristics”. Race, sex, sexual orientation and age amongst other traits qualify for such protection. Critically to the present case, section 10 protects against discrimination based on “religion or belief.” The definition of ‘belief’ is wide, encompassing any religious belief, any philosophical belief or even a lack of belief.

However, some limits to the definition of philosophical belief were established by Mr Justice Burton in Grainger v Nicholson [2010] IRLR 4 at [24], namely 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

Although the test has been further developed in later cases (see Harron v Chief Constable of Dorset Police [2016] IRLR 481 and Gray v Mulberry Company (Design) [2018] IRLR 893), these remain the essential elements to be established to prove that a belief qualifies for the protections afforded by the act.

Whilst the Respondents were reportedly prepared to concede on the issue Judge Robin Postle “did not accept the concession, preferring to reach his own independent decision”.

The Decision

Although the judge’s written decision is not yet available, the BBC reported that he found ethical veganism satisfied the above tests, and was “important” and “worthy” or respect in a democratic society. He concluded that

I am satisfied overwhelmingly that ethical veganism does constitute a philosophical belief.

Implications

Veganism has been a hot topic in the news this month, with people around the country pledging to give up meat and animal products for “Veganuary” and brands such as KFC and Gregg’s launching new plant-based products. As such, the decision has attracted considerable attention in the news and on social media. The language surrounding the case has been sensationalist at times, with many commentators calling the case a “landmark” one.

However, the implications of the finding are limited. It remains a finding from an Employment Tribunal. The Respondents were apparently willing to concede the issue and so are highly unlikely to appeal it. As such it seems unlikely that the question will find itself before a higher court in the present case and so this case will not create a binding precedent.

Furthermore, the Claimant is a particularly committed vegan. He will, for instance, walk rather than take a bus to avoid accidental crashes with insects or birds. The beliefs of other vegans would not necessarily be the same, and they would need to prove that their belief qualified for the same protection.

Nevertheless, for ethical vegans the case is likely to be welcome news. This is the first time the question has been ruled on in the UK and the judge’s finding was apparently emphatic. The case sends a message to employers, who may take the view that the future cases are likely to yield similar outcomes. Peter Daly, the solicitor for Mr Casamitjana, has suggested that any abuse directed at ethical vegans

might be seen to be harassment in the same way a racist or sexist slur might be discriminatory action.

Finally, it is worth noting that for the parties, this preliminary decision isn’t the end of the case. The Respondent maintains that the Claimant’s beliefs were irrelevant to the dismissal, and the question of whether the Claimant was indeed treated less favourably because of his veganism remains to be decided.

Samuel March is currently undertaking the Bar Professional Training Course at the University of Law.