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The ethical veganism case: a reflection of a progressive society

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Discrimination lawyer Yara Ali-Adib looks at last week’s headline-grabbing ruling

For some eating plant-based is a dietary choice, for others — described as ethical veganism — it is a practice which involves trying to exclude all forms of animal exploitation from every aspect of life.

Discrimination and ethical veganism

The question an employment tribunal considered last week is whether ethical veganism is a protected characteristic and therefore can be legally prohibited from discrimination. Here, the tribunal found that ethical veganism does constitute a philosophical belief under the Equality Act 2010.

The ruling is part of a case brought by claimant Jordi Casamitjana against his former employer, the League Against Cruel Sports (LACS). Casamitjana discovered that the pension fund of LACS was investing in companies which he states go against the core principles he abides by as an ethical vegan. He informed his colleagues, encouraging them to act against this. LACS hold that this communication was contrary to managerial instructions and so summarily dismissed Casamitjana. The case involves the claimant alleging wrongful dismissal, claims for detriment under whistleblowing protection laws and breaches of the Equality Act. LACS state that the reason for dismissal was due to Casamitjana’s gross misconduct.

Last Friday’s ruling — which the BBC describes as a “landmark” decision — is the result of a preliminary hearing on the matter. For the case to proceed on the pleadings argued, employment judge Robin Postle had to consider the question: is the claimant’s ethical veganism a protected characteristic for the purposes of the Equality Act?

The protected characteristic of philosophical belief

Under the Equality Act there are nine protected characteristics in which it is illegal to discriminate against. These are: age; disability; gender reassignment; marriage and civil partnership; race; pregnancy and maternity; religion or belief; sex; and sexual orientation. The case in hand concerns “belief” as per section 10:

“10. Religion or belief

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
…”

Parliament has drafted this legislation in an open-ended manner. This is the delight of section 10. Caselaw and the Equality Act 2010 Code of Practice provide a five-point test for determining when a philosophical belief is a protected characteristic, the belief:

1. Must be genuinely held;
2. Must be a belief and not an opinion or viewpoint based on the present state of information available;
3. Must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. Must attain a certain level of cogency, seriousness, cohesion and importance;
5. Must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Ethical veganism

The claimant’s case drew a distinction between the varying conceptual commitments to veganism. Casamitjana’s belief in veganism goes further than only a dietary restriction (this helps distinguish the case from Conisbee v Crossley Farms Ltd and Ors in which the claim of vegetarianism as a protected characteristic failed). Rather his fundamental belief is “ethical veganism”, therefore along with not eating or wearing any animal products, the claimant is also conscious of, for example, his travel impact by choosing to walk, rather than taking the bus, as buses are more likely to kill insects. The belief influences every aspect of his life.

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Due to his belief that ethical veganism is a ‘moral imperative’ the tribunal found that the claimant passed the five-point test (above) making the belief a protected characteristic under the Equality Act. The five-point test’s final hurdle that the belief must be “worthy of respect in a democratic society [and] not incompatible with human dignity”, recently meant a different case — in which the claimant’s belief that sex is an immutable biological fact — failed. However, Casamitjana pleading that his belief in ethical veganism “positively improves it [democracy]” was accepted.

Commentary

I agree that the claimant’s belief adds to the richness of our society and the country’s rising number of vegans may likely concur too. Is it really a surprise that employment judge Postle has found ethical veganism to be a protected characteristic? No, caselaw suggests a movement towards accepting a wide and varied understanding of what constitutes a philosophical belief. For example, in the case of Grainger; a genuine belief in man-made climate change, and the alleged resulting moral requirements, is a philosophical belief to be protected against discrimination. The crux is passing the five-point test. Yes, this does put philosophical belief on the same weighting as a person’s religious identity, but this is wholly correct as intended by section 10 of the Equality Act for “philosophical beliefs may be just as fundamental or integral to a person’s daily life as are religious beliefs”. This aligns with our article 9 right for “freedom of thought, conscience and religion” under the European Convention of Human Rights.

Though this ruling is from a first instance employment tribunal and whilst it isn’t a surprise, the implications may involve goods and service providers now having to ensure, for example, vegan meal options. This is not controversial, in 2017 Portugal passed a law making it illegal not to offer vegan food at prisons, hospitals and schools. Being a protected characteristic under the Equality Act also has potential implications for employers who may want to be aware that uniforms or office equipment be vegan-compliant.

Some are saying that this ruling may pave the way for ethical vegans to bring a judicial review challenge against the Bank of England for issuing banknotes made with animal products. It is a matter of watch this space, but for now I want to remind you not to sensationalise this ruling in any great way as it fundamentally fits with how a modern tolerant society should act; as the European Court of Human Rights observed in Kokkinakis v Greece, “the pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it”. This ruling is simply a reflection of a progressive society.

Yara Ali-Adib is a solicitor at Broudie Jackson Canter who specialises in discrimination and human rights law.

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18 Comments

Anonymous

A volunteer or intern who is discriminated against and harassed in an office for being vegan has no opportunity to go to tribunal and have evidence heard.

Millions of people volunteer without the legal protection afforded to workers for doing very similar jobs. Do volunteers not deserve ‘access to justice’ too?

We still have a long way to go to be a truly progressive society.

No siree

Yeah but back to the core argument.

I could happily go without meat 5 or 6 days a week.

But no dairy? You’re having an absolute laugh. I want to poop properly and get all my vitamins.

Kathy Foster

It’s not dairy that helps you poop and you can get all your vitamins easily. After 36 years my bloods are perfect, even B12 with no supplementation. All you miss out on is bad cholesterol, and cruelty plus you vastly reduce your chances of many cancers, heart disease and many other illnesses.

No please

You missed out – as a vegan you also miss out on yummy meat. Imagine never having a rare steak again? Or a proper fry up. God forbid.

Fishy fishy

Imagine never having a fish and chips, ever again. I probably have about 5 or 6 fish and chips per year, nothing excessive. But what a treat. Imagine never crunching your teeth into a freshly battered cod, washed down with some vinegary chips and mushy peas.

NQ

Vegans should have no protection.

Celia Bromilow

Thoughtful commentary from Yara here. My thoughts are the same in that Postle will not have ignored the case law prior to this ruling.

The most important point here is not that Ethical Veganism is protected, although personally I’m please to hear this. It is that the law has adapted with the times, this is essential for a democratic society to progress.

Disgruntled

Fair enough, people can be Vegan. I don’t think that warrants, in the case of an ethical vegan, it being a protected characteristic. Viewed in the context of people’s feelings being hurt far too easily and getting offended over nothing nowadays, its just farcical.

The only silver lining is that people can now, in the alternative, not be discriminated against for not being an ethical vegan.

Gladiatrix

Casamitjana was effectively giving financial advice without being qualified to do so. His employer was right to fire him; he could have voided their insurance indemnity and left them exposed to a negligence claim.
This was a stupid decision which failed to take proper account of the employer’s position. Hopefully the EAT will overturn it.
The ET appears to be going through a thoroughly stupid phase, see also the Forstater decision which is one of the most blatant pieces of judicial misogyny I have ever seen. It is time for the President of the EAT to put the ET’s house in order.

Beleaguered employment barrister

It’s long been the case the the ET, amongst its many good judges, is stuffed full of a mixture of cranks, clever dicks, and deluded small town solicitors with chests puffed at their perceived sense of importance.

The latter tend to love bullying young barristers. Had a particularly unpleasant experience with one up in Cambridge ET – got increasingly angry and bullying the more a young London barrister politely pointed out he was wrong, and was pre judging my client’s case.

You mix those negative points by pointing out the many good ET judges – usually barristers, including many who have spent a lifetime building encyclopaedic knowledge of discrimination law.

However, it’s nothing knew that the ET is chock full of rubbish.

Tim

I’m not an expert in law or Islam. But Islam only allows certain banking practices – if these applied to a pension scene and a Muslim let other Muslims at a company aware of this, would they also be libable to be dismissed? Or covered by the Equality Act?

How do you know if someone is a vegan?

They’ll tell you within 2 minutes of meeting you.

Meat Eater

If you can’t work out from the smell first.

Anon

We cannot avoid having to pander to those deluded by religion as the protection of their irrational self-soothing belief systems is sadly too well entrenched. However, using that as the basis for “protecting” nonsense like veganism at cost to business and to right minded ordinary folk is just appalling.

Passer by

right-minded?

Postman Pat

“Right-minded” – The silent majority of ordinary folk tired of this sort of liberal gibberish.

Anonymous

The rise in veganism is making it much riskier to eat in restaurants/buy food for people (like me) who are allergic to nuts and pulses, because of the increasing use of things like nut “milks” and thus cross-contamination.

I don’t have a choice about my allergies. In contrast, vegans choose their beliefs.

If I eat nuts I may well die. If a vegan eats an animal product, they suffer no ill effects.

Forcing restaurants etc to have vegan options will make matters worse for people like me and thus arguably amount to disability discrimination – there is at least one ET decision out there in which a severe nut allergy was held to be a disability.

I find it odd that the vegan lobby apparently cares so much about animals, but does not seem to care about the effect of their choices on fellow humans!

Anonymous

Nut hysteria has gone too far too. If people don’t know what is in the food on offer, no-one is forcing them to eat it.

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