Two recent employment tribunal decisions deal with religion or belief discrimination under the provisions of the Equality Act 2010, and whether this protection extends to vegetarians and vegans.

Are vegetarians protected?

Conisbee v Crossley Farms Ltd and others ET/3335357/2018

In this 2019 case, the employee resigned after around five months of service and brought a claim in the employment tribunal for discrimination on the ground of religion or belief, based on his vegetarianism. A preliminary hearing was held to determine whether or not vegetarianism is capable of satisfying the meaning of a philosophical belief under the Equality Act 2010, before the case could be decided at a full merits hearing.

The tribunal held that the claimants belief did not qualify for protection under the Equality Act 2010. It was accepted that the claimant has a genuine belief in his vegetarianism and that it is a belief worthy of respect in a democratic society, but it failed to meet the hurdles required for protection. A belief must have a similar status or cogency to religious beliefs to be protected. The judge highlighted the fact that vegetarians adopt the practice for many different reasons (such as lifestyle, health, diet, animal welfare). In contrast, the judge noted that veganism has a clear cogency and cohesion, meaning that it is more likely to be a protected belief.

What about vegans?

In early 2020, the same Employment Judge held a preliminary hearing to decide whether a vegan was protected under the provisions of the Equality Act 2010.

Casamitjana Costa v League Against Cruel Sports ET/3331129/2018

The employee claimed that his dismissal from the League Against Cruel Sports (LACS) was discriminatory because he is an ethical vegan. LACS claimed that he was dismissed for gross misconduct having repeatedly, and in direct contravention of an express instruction not to do so, contacted staff about the investment of their pension funds in firms involved in animal testing.

Before the employment tribunal could rule on the reasons behind the dismissal, they had to decide whether the claimants status as an ethical vegan is protected as a philosophical belief under the Equality Act 2010.

Evidence was submitted to show that the claimant is a keen campaigner against all forms of animal exploitation going far beyond his dietary choices. In addition to his 100% vegan diet he avoided all foods that could potentially harm animals in their production and refused to allow any food or other animal products into his house.

The judge was satisfied that the claimants belief in ethical veganism was genuinely held and was more than a mere opinion or viewpoint. It had a weighty and substantial effect on his everyday life and behaviour and was a belief with a high level of cogency, cohesion and importance. The judge was therefore satisfied that there was overwhelming evidence that ethical veganism is capable of being a philosophical belief, thus a protected characteristic under the Equality Act 2010. A full hearing of the case was due to take place in February and March 2020, so we dont yet know whether the claimant has succeeded in his claim.

It should be noted that this ruling concerned the claimants own belief in ethical veganism, and does not automatically mean that all vegans now qualify for special protection. In addition, both this and the previous decision, as first instance employment tribunal decisions, have no binding authority; a different tribunal may reach a different conclusion on the facts.

What does this mean for the food sector?

Whilst perhaps less significant than headlines at the time suggested, the ethical vegan case is likely to raise some concerns, particularly for businesses in the agricultural, food production/retail and catering industries where employees are expected to process or handle any form of animal product.

Cases brought under the Equality Act 2010 show that the meaning of philosophical belief will generally be interpreted widely, but it is much harder for the claimant to establish that the treatment they are complaining about results from that belief.

Employers who are aware that they employ vegans should be mindful that they may be legally protected in relation to their vegan beliefs. For most purposes, this will not require any significant changes to workplace policies or practices. Examples might include providing vegan options at catered workplace events, and ensuring that workplace banter does not result in harassment directed towards vegan employees. Dont forget that dietary restrictions can also relate to religious beliefs, which are also protected under the Equality Act 2010.

The decision does not necessarily mean that a vegan employee can legitimately refuse to handle all animal products. Employers may need to consider whether a vegan employee can be assigned duties that do not bring them into contact with animal products, but if there are legitimate business reasons why this is just not practicable, the employer is likely to have a good objective justification argument to defend its decision.

This article is from the spring 2020 issue of Food for Thought, our newsletter for those working within the food and drink industries.

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Food for Thought - Vegetarians and vegans: what is a protected belief? - Lexology