Employment Tribunal provides reasoning in ethical veganism case

29 January 2020 by Samuel March

Casamitjana v The League Against Cruel Sports [2020] UKET 3331129/2018 

Following his headline-grabbing finding on 3^rd January 2020 that “ethical veganism is a philosophical belief which qualifies as a protected belief within the meaning of section 10 of The Equality Act 2010”, Norwich Employment Tribunal Judge Postle has now provided his full determination.

Background

The judgment was handed down following a preliminary hearing in a matter between the Claimant, Mr Jordi Casamitjana Costa, and his former employer, The League Against Cruel Sports. The facts of the case are set out in more detail in an earlier article from earlier this month.

In short, the Claimant is pursing complaints, inter alia, of indirect discrimination, direct discrimination or harassment and victimisation by reference to his belief in “ethical veganism”. “Ethical veganism”, according to the Vegan Society,it is a philosophy and way of life 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.

Issue

The purpose of the preliminary hearing was to determine whether or not ethical veganism satisfied the test 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

The Respondents were willing to concede. However, Employment Tribunal Judge Postle preferred to reach his own independent decision.

Held

Finding emphatically for the claimant on every limb of the test in Grainger v Nicholson, it was

easy to conclude that there is overwhelming evidence before [the court] that ethical veganism is capable of being a philosophical belief and thus a protected characteristic under the Equality Act 2010. [40]

The judge’s reasoning is set out at [33]-38]. It was found that:

1. There is “no doubt” that the Claimant genuinely holds his belief [33];
2. This is a “real and genuine belief” as opposed to some “irrational viewpoint” [34];
3. It has “sweeping consequences” on human behaviour [35];
4. It has, “without doubt” obtained a “high level of cogency, cohesion and importance” [36]; and
5. It “does not in away way offend society” [38]

Importance of the finding

Although hailed by commentators as a “landmark ruling,” The Law Society Gazette, citing Barry Ross of Crossland Employment Solicitors, reported that the ruling does not, in fact, affect the law:

It is important to remember that this is the judgment of the first instance employment tribunal. It does not have to be followed and does not implement any change in the law. It does give employers guidance in relation to the likely treatment of ethical veganism before the employment tribunal and as such, the types of steps they should be considering for their employees and the workplace.

Nevertheless, the judge’s reasoning seems sound and the evidence persuasive. It therefore seems likely that future tribunals or appellate courts would agree and reach similar findings in similar cases.

This being said, not all who seek protection under the act are likely to hold the belief as genuinely as Mr Casamitjana. At [20]-[22], the judgment delves specifically into the facts of his strain of ethical veganism, with dozens of subparagraphs detailing the extent of the Claimant’s commitment. There is discussion of the products and services he will not consume, use or wear, the lengths he will go to avoid them, and the supplements he takes to replace nutrients normally sourced from animal products. Particularly striking among the findings, at [22.6], is that

If the Claimant’s destination is within an hour walking distance he would normally walk there to avoid accidental crashes with insects or birds when taking a bus or public transport.

The Claimant will also not own pets, sit on leather seats, attend social gatherings where the food served is not vegan, allow others to bring non-vegan food into his home, or share a property with anyone who was not a vegan.

So whilst other courts may reach similar findings faced with committed ethical vegans, it is unlikely that the act would protect someone who simply eats plant-based food for dietary reasons or was doing a “Veganuary” challenge (going vegan for January).

A double-edged sword?

The news has been welcomed by the vegan community, with sites such as Vegan News calling it a “victory.” However, it should be noticed that establishing anything as a “philosophical belief” for the purposes of the act can be a double-edged sword.

Section 10 (2) of the Equality Act states that

Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

As such, the finding may prove to cut both ways. As per the hypothetical illustration by the EAT in Granger at [31],

… if the Respondent [the employer] has his philosophical belief in climate change, and he were to discriminate against someone else in the workforce who does not have that belief, then the latter would be capable of arguing that he was being treated less favourably because of his absence of the belief held by the Respondent.

If it is, indeed, unacceptable for non-vegans to discriminate against vegans, it follows that vegans may also be unable to discriminate against those who do not share their views.

However, if this issue were to arise in a future case, the tribunal would likely be required to engage in an evaluation of whether such a belief is “worthy of protection in a democratic society”. As we have seen recently in relation to the issue of gender, this is a complex and fraught question. So although this decision may give some clarity, it may also raise further questions for the future.

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