Philosophical belief under the Equality Act
Under the Equality Act it is unlawful to discriminate, harass or victimise employees or job applicants on the grounds of their religion, religious belief or philosophical belief.
“Religion or belief” is a protected characteristic under the Equality Act, just like for example age or race, and is defined as follows:
• “Religion” means any religion, and a reference to religion includes a reference to a lack of religion.
• “Belief” means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
The term “belief” was originally defined as any “religious belief or similar philosophical belief”, however the definition was amended in April 2007.
The removal of the word “similar” sparked controversy, mainly focused on whether it extended the protection to political views, and hence could protect members of the BNP or other extreme political organisations whose policies employers may find repugnant. However, the Government expressly disavowed any intention to widen the ambit of protection, maintaining that the word “similar” was simply redundant.
Although most people may feel confident in identifying a religious belief, a philosophical belief can be more difficult to identify given the wide definitions above.
There is a wide variety of beliefs that could be, and have been argued to be, philosophical beliefs. The Equality and Human Rights Commission (EHRC) Guide to religion or belief states “an employer should only question a belief in the most exceptional circumstances where, for example, it is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is genuinely in doubt”.
Employers, therefore, should not be too quick to judge what may (or may not) be a philosophical belief.
One of the major issues facing the world today is climate change.
Perhaps surprisingly to many readers, case law has found that belief in man-made climate change is a philosophical belief; which means it falls under the Equality Act
The leading case in this area is Grainger v. Nicholson in which an employee of a London property company, Tim Nicholson, claimed unfair dismissal after he refused to take a flight for what he regarded as a trivial reason, given his beliefs about the importance of combating human made climate change. Mr Nicholson argued that the protection should cover a belief:
“… that mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same.”
Finding in favour of Nicholson, the tribunal held that his belief gave rise to a “moral order” similar to most religions and was a “philosophical belief”. The appeal by his employer was rejected and the Employment Appeal Tribunal upheld the tribunal’s decision on this point. However, it acknowledged that there must be some limitation on the definition of philosophical belief, and drew a number of principles from existing case law:
• The belief must be genuinely held.
• It must be a belief, not an opinion or viewpoint based on the present state of information available
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• 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 Employment Appeal Tribunal further held that:
• Notwithstanding the removal of the word “similar” from the definition, a philosophical belief must nevertheless “have a similar status or cogency to a religious belief” if it is to be covered. However, it need not “allude to a fully-fledged system of thought” – in other words, “it need not amount to an ‘-ism'”.
• A belief (even a religious belief) need not be shared by others
• While “support of a political party” does not of itself amount to a philosophical belief, a belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, may well qualify.
• A philosophical belief may be based on science. If Creationism (which is based on faith) is protected, Darwinism (which is based on science) “must plainly be capable of being a philosophical belief”.
Genuine belief must be established, not merely asserted
Importantly, the Appeal Tribunal held that while it is not the courts function to assess the validity of a belief by some objective standard, it may be appropriate to enquire into whether the belief is genuinely held. They went on to suggest that, to establish a religious belief, an employee may only need to show adherence to a particular religion. However, to establish a philosophical belief, cross-examination is likely to be needed.
The Employment Appeal Tribunal stated that the employment tribunal should not have found without hearing evidence, that the employee’s beliefs are or amounted to a philosophical belief. Instead, it should have found that the asserted belief on which the employee based his claim was capable of being a “belief” under the legislation.
Therefore, although this case appears to have wide implications, the tribunal warned that it “should not be seen as the thin edge of the wedge [for] similarly based complaints”. This caveat is even more pertinent following the decision that the employee should be cross-examined as to the actual extent of his belief.
This case provided much-needed guidance on the scope of protection and in doing so, it set the requirement that philosophical beliefs must “have a similar status or cogency to a religious belief” in order to be protected. It is significant in this regard that the employees own personal philosophy included a moral imperative to live life in a particular way – a feature which is common to most religions.
So, considering man-made climate change can amount to a philosophical belief, to what degree should veganism be protected by law as a philosophical belief?
This is a question that is central to a landmark legal action currently being heard, which will determine whether (or not) veganism is a philosophical belief.
Although it is a standalone concept, veganism can be linked to the debate over climate change. Veganism means to hold a particular view about the relationship between humans and animals, which attempts to improve animal welfare and to reduce the impact food production has on the planet. While veganism is on the rise globally, its growth and principals are contentious.
Many readers will undoubtedly know someone at their place of work who is vegan. Recently published surveys of veganism in the workplace indicate that many vegans feel discriminated against by their employer (and others), on the basis that vegans are thought to follow a popular trend, rather than a genuine belief.
It has already been made clear that vegan employees may refrain from certain work duties such as working with animal products, and employers must make a clear commitment to equality and human rights, where necessary implementing new policies in the workplace or explaining what a belief means to other members of staff through training.
In this case, the employee, Jordi Casamitjana, claims he was sacked by the League Against Cruel Sports after raising concerns that its pension fund was being invested into companies involved in animal testing.
Mr Casamitjana brought a case under the Equality Act 2010, on the grounds that he was discriminated against as an ‘ethical vegan’. The zoologist, who has followed the lifestyle for more than 17 years, claims he was unfairly disciplined for making this disclosure and that the decision to dismiss him was because of his philosophical belief in ethical veganism, which means that he does “not eat, wear or consume any animal products”, or use products tested on animals. The League disputes unfair treatment and dismissal.
Intriguingly, following disclosure from Mr Casamitjana, the Employer has changed their position and no longer contest that ethical veganism is (or could amount to) a protected philosophical belief under the Equality Act 2010, and have conceded that he was an ethical vegan holding such belief.
Although this was good for Mr Casamitjana’s case, it meant that there would no longer be the need to discuss this issue at the preliminary hearing, or for the judge to produce a written judgment on this point. A judgment would be of use to other ethical vegans, and to the public interest.
However, while the parties were waiting outside the Tribunal to begin the preliminary hearing on other points, both sides received a note from the sitting judge, communicating his view that the Tribunal should still determine the status of the ethical veganism as a philosophical belief, and should still produce a written judgment on the question.
The preliminary hearing on the issue of whether ethical veganism is a protected belief will now take place in October 2019 after which the judge will produce a written judgement on the issue of the protection of ethical veganism.
Although the point had been conceded between the parties, this should not have been unexpected. The Judge was clearly mindful of the public interest in the issue. To this end, in what is a surprise move, the tribunal are keen that all of the evidence will be publicly available, so Mr Casamitjana’s solicitors will make the documentation relating to their arguments on this point available to the public in advance of the hearing.
It is not hard to imagine that the judgment will mirror the point of agreement reached by the parties, which will mean that veganism is capable of being covered by the Equality Act if a particular vegan has a genuinely held belief and not just an opinion or viewpoint.
From a legal perspective, the current approach to veganism in the workplace perhaps demonstrates a lack of understanding of the Equality Act 2010, which should be clarified. However, the point remains contentious and the arguments are not all legal ones.
Unlike their race or gender, people are responsible for their beliefs. Presumably, Mr Casamitjana chose to become a vegan. But if we’re responsible for our beliefs, then arguably we’re responsible for bearing the costs or obligations they incur. Another aspect to the issue of the choice, is that while many think the belief is “genuine” in wanting to address concerns around animal welfare or the environment, many also consider those who choose to become vegan do so because it is fashionable, to lose weight or to look good.
As far as veganism is concerned, the various reasons behind the choice to become vegan are viewed to dilute its importance as a belief and one cannot deny that we often see the extent of someone’s belief in veganism (and similar lifestyles such as vegetarianism), fluctuating. However, this argument can be true for almost any idea or belief and so all decisions will be on a case by case basis. Nevertheless, it cannot be denied that it is a coherent way of life involving significant sacrifice, obligation and commitment. Even if one disagrees with it, veganism is a matter of conscience for many people.
There is a further interesting argument relating to this area: if a belief is only protected if it is “… not… incompatible with human dignity and [does] not conflict with the fundamental rights of others…”, does this mean that certain fundamentalist beliefs (for example, those that espouse violence against non-believers, or the subjugation of women) may not qualify for protection, even though “religious” in nature?
Both veganism and climate change are important and popular issues today. Of course, in a democratic society, the right to manifest one’s beliefs should not be partial or sectarian, as arguably it would be if the law only protected religious beliefs. But from the other direction, there’s a danger of having too many kinds of protected beliefs risks undermining the notion that only some beliefs are especially weighty, and giving undue importance to trivial beliefs, as parodied by the Church of the Flying Spaghetti Monster. It also begins to erode the important principle that there should be one law for all. However, while we might argue about these particular cases, the fact that some non-religious beliefs qualify for protected status shows that freedom of conscience is not just a right for those we consider as being traditionally religious and that must have been the intention of the legislation.