You Are What You Eat?

Following on from the landmark ruling we published back in September 2019, where we referred to Leathes Prior’s Sarah Appleton and Dan Chapman representing a successful employer in relation to a claimant seeking to allege that his vegetarianism amounted to a “philosophical belief”, such that he be protected against discrimination, a second case has emerged, this time focusing on veganism.

Many of you will recall that the Hearing last year concluded that vegetarianism did not amount to a philosophical belief capable of protection under the Equality Act 2010, alongside other protected characteristics such as gender, race, or disability.

Simply put, the Tribunal agreed with our experts that vegetarianism is not a philosophical belief, and so the Claimant could not bring a discrimination claim based on any “banter” or other treatment he allegedly suffered by virtue of being a vegetarian.

The key principle from the Judgment was that vegetarianism is a lifestyle choice and that, on the basis that people are vegetarians for a whole number of reasons, it did not amount to a serious cogent belief (which is one of the requirements from the legal test for “philosophical belief”).

Last week the same Employment Tribunal (and the same Judge) heard a second case, Casamitjana v League Against Cruel Sports, this time focusing on veganism, specifically “ethical veganism” (the belief not only in following a vegan diet, but also avoiding the use of animal products entirely and taking active steps not to harm any animal in any way).

Whilst in contrast to the case last year, the employer had (for perhaps obvious reasons, given their business), conceded that the Claimant’s “ethical veganism” was sufficient to warrant protection under the Equality Act 2010, the case hit the national press following confirmation from the Employment Judge that he was “satisfied overwhelmingly” that ethical veganism did amount to a philosophical belief.

The key distinction between the two appears to be the cogency of the belief, i.e. the reasons for holding the belief being similar or the same. So, whilst people may be vegetarians for various different reasons, some unconnected to a “belief” per se, it appears (although the full Judgment is not yet available) in the vegan case that the Judge was satisfied that in the main, ethical vegans are ethical vegans for the same reasons, and are committed to it as a belief and way of life.

Indeed, an interesting question for future cases is whether or not “normal” (i.e. non-ethical) vegans would be protected – the Judgment of the vegetarian case appeared to suggest they would, although the perhaps deliberate clarification in the second case that “ethical” vegans are protected suggests that “normal” vegans might not be. So we’ll have to watch this space on that one!

So what should employers do going forward?

The first point to remember is that these decisions are Employment Tribunal decisions only, and therefore not, strictly speaking, binding on either other Employment Tribunals, or, indeed, on employers. That said, both cases attracted vast media coverage and employers therefore should be prepared for more allegations of discrimination on the basis of belief – not just veganism, but other beliefs too, such as a belief in using recyclable materials, or anti-animal testing. As concern for the environment and ethical practices are more and more at the forefront of people’s minds, we anticipate that there may be increasing numbers of these types of claims going forward, looking to expand the “philosophical belief” definition further.

Contrary to some recent commentary, there is no need for employers to start changing their equal opportunities policies to refer to ethical vegans being protected, nor to bring in a whole host of new rules or training. What employers should do though, is be mindful that more discrimination allegations are likely from staff, and to take steps (as far as possible) to minimise the risk of those allegations coming – that means treating staff fairly and with respect, and shutting down any “banter” which is inappropriate or crosses a line, as soon as you become aware of it. Put simply, if you are nice to your staff and foster a nice working environment, they will have less reason to complain and (if they are ethical vegans) to allege discrimination. And that sounds like a pretty good New Year’s Resolution to us…

As ever, if you have any questions, please do not hesitate to contact one of the Employment Team on 01603 281153.