Employment briefing: two new cases explore the limits of protected philosophical beliefs, one upholding and one denying the claimant's right to protection in terms of the accepted criteria

2020 has started with a couple of cases considering the definition of philosophical beliefs.

Case law has held that, for a philosophical belief to have protection under the Equality Act 2010, the belief has to meet the following somewhat “tick box” criteria (set down in Grainger plc v Nicholson [2010] ICR 360 (EAT)):

  • it must be genuinely held;
  • it must be a belief, not an opinion or viewpoint based on present available information;
  • 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; and
  • it must be worthy of respect in a democratic society and not be incompatible with human dignity.

Ethical veganism

In a case considered by the Norwich Employment Tribunal, Casamitjana v League Against Cruel Sports [2020] UKET 3331129/2018 (21 January 2020), the judge found “overwhelmingly” that ethical veganism constitutes a philosophical belief and is a protected characteristic.

Casamitjana was employed by the League Against Cruel Sports, which alleged it had dismissed him for gross misconduct. Casamitjana claimed he was dismissed because he blew the whistle over his employer’s pension fund investments in firms involved with animal testing, which was against his ethical vegan beliefs.

The League actually conceded that ethical veganism amounted to a protected philosophical belief. However the tribunal, at a preliminary hearing, decided it required to determine that point for itself.

The case has attracted much publicity in light of the extended protection for (some) vegans (and it tied in nicely with Veganuary). However, amongst the headlines it should be remembered that other vegans, even other ethical vegans, may not have the same set of beliefs as Casamitjana, therefore their belief may not amount to a protected characteristic.

A tribunal will now determine whether the League fairly dismissed Casamitjana because of gross misconduct or discriminated against him on the basis of his belief. If a tribunal again finds in his favour, he will be entitled to loss of earnings and damages for injury to feelings.

Employers and practitioners alike should take note of this finding and how it may affect their business and clients – are vegans catered for, and can ethical vegans object (now with protection) to handling non-vegan goods? Employers should exercise caution.

Unethical “gender critical” views

Conversely, an employee’s view that it is impossible for an individual to change their sex was held in Forstater v CGD Europe [2019] UKET 2200909/2019 (18 December 2019) not to be a philosophical belief for the purposes of the 2010 Act by an employment tribunal.

Forstater worked as a consultant for the Centre for Global Development (CGD). She had tweeted that a person’s sex cannot be changed, regardless of their stated gender identity, expressing her concerns with the proposed reforms to the Gender Recognition Act and stating that expanding the legal definition of women to include both males and females rendered the concept meaningless. She contended that these “gender critical” views amounted to a philosophical belief, and the non-renewal of her contract by CGD was therefore a discriminatory act.

At a preliminary hearing the judge found that Forstater’s view met many of the required criteria. Her belief was genuinely held, and the importance she attached to it proved it to be a belief rather than merely an opinion based on the present state of information. He also deemed it a belief as to a weighty and substantial aspect of human life and behaviour, and viewed the fact that her approach was largely supported by current law as evidence that the belief attained the necessary levels of cogency and cohesion.

However, crucially, Forstater’s belief was found to be incompatible with human dignity and the fundamental rights of others, a key requirement of a “philosophical belief” under the 2010 Act. Her view denied the right of a person with a gender recognition certificate to be the sex they had transitioned to. The judge concluded that a core component of her belief was that she would refer to a person by the sex she considered appropriate even if that would violate their dignity and/or create a hostile, degrading, humiliating or offensive environment. This approach was deemed not worthy of respect in a democratic society and so her belief failed to meet the definition of a philosophical belief.

The judge also addressed the implications his decision had for freedom of speech. It was legitimate to exclude a belief that necessarily harmed the rights of others. By refusing to accept the full effect of a gender recognition certificate, it meant causing harassment to trans women by insisting they were men and trans men by insisting they were women. The human rights balancing act would not work in Forstater’s favour because of her “absolutist” approach.

The Author

Claire McKee, associate, Dentons UK & Middle East LLP

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