by Andrew Robertson, Trainee Solicitor
The recent Employment Tribunal case of Conisbee v Crossley Farms Ltd  ET 3335357/2018 shed an interesting light on the subject of protected philosophical beliefs under s 4 of the Equality Act 2010. The central question here was whether the claimant’s vegetarianism constituted a ‘belief’ sufficient for protection under s 4 of the Act (protected characteristics).
‘Philosophical belief’ test
Before considering the facts, we must begin by noting the established criteria for determining a philosophical belief. Burton J in the case of Grainger plc v Nicholson  EAT 0219/09/ZT;  2 All ER 253 set out five criteria (also contained at para 52 of the Act’s explanatory notes). The test states that the belief must:
- be genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Mr Conisbee made a claim against Crossley on the grounds of discrimination on the basis of a belief. He claimed that his resignation was as a result of constructive dismissal following certain incidents during his employment in which he alleged that he was harassed for being a vegetarian.
Applying the test
The question at the preliminary hearing was, therefore, does vegetarianism satisfy the requirements and definition of a religion or belief under s 10 of the Act? With reference to the criteria set out above, the tribunal held that vegetarianism met some, but not all, of those criteria.
The tribunal accepted that Mr Conisbee’s belief in his vegetarianism was genuine and that, in his opinion, the world would be a better place if animals were not killed for food. It further held that vegetarianism is worthy of respect in a democratic society, and that it is not incompatible with human dignity.
Human life and behaviour
The decision turned on the points of whether vegetarianism is a weighty and substantial aspect of human life and behaviour, and also if it contains a sufficient level of cogency, seriousness, cohesion and importance.
In relation to the first point, the tribunal sided with the respondents in noting that vegetarianism is not about human life and behaviour, but rather it is a lifestyle choice. In Mr Conisbee’s view, the world would be a better place if animals were not killed for food. However, the tribunal, while noting that this is an ‘admirable sentiment’, held that vegetarianism cannot be described as relating to a weighty and substantial aspect of human life and behaviour.
Vegetarianism v veganism
Turning to the second point, the tribunal noted that it must guard against applying too stringent a standard to this. It accepted that there are many vegetarians around the world, but that the reasons for choosing to live as such differ greatly amongst them. The tribunal contrasted this with veganism, where the reasons for being a vegan appear to be far more cohesive. The tribunal went on to point out those differing reasons for being a vegetarian; lifestyle, health, diet, concern about the way animals are reared for food, and simply personal taste were all noted.
The tribunal then indicated the difference between this and veganism, noting that the latter simply does not accept the practice of eating meat, fish or dairy products under any circumstances. Vegans also have distinct concerns about the way animals are reared in that their belief is clear that killing and eating animals is contrary to a civilised society and also detrimental to climate control. It noted therefore that veganism is a clear, cogent and cohesive belief ‘which appears contrary to vegetarianism, i.e. having numerous, differing and wide varying reasons for adopting vegetarianism.’
Although considering most strands of the test to be satisfied, on balance, the tribunal was not persuaded that vegetarianism equated to a philosophical belief capable of protection under the Act.
This conclusion is perhaps a little surprising considering previous case law. In the case of R (Williamson) v Secretary of State for Education and Employment  UKHL 15;  2 AC 246 (referred to by Mr Conisbee), Lord Walker stated, ‘pacifism and vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs’. This case was also referred to in Nicholson and so it is somewhat surprising that almost a decade ago vegetarianism was considered an uncontroversial belief but the tribunal had now held otherwise.
However, what appears clear from this case, and others in this subject area, is that what amounts to a protected characteristic under the Act is likely to adapt in line with societal changes. This perhaps makes sense in a society where opinions and beliefs are more fluid and continually changing and developing. Indeed a balance must be struck whereby the freedom of expression and also the rights of individuals are safeguarded. The Nicholson test provides a framework from which changing beliefs can be assessed and judged on their merits. Courts and tribunals must take care not to simply let all belief claims pass, and only give weight to those which clearly satisfy the test, no matter how different those beliefs may be compared with more established, historic ones.
This issue will almost certainly rear its head again in the ongoing case concerning Jordi Casamitjana and his claim for unfair dismissal based on his belief in ethical veganism. The outcome of that case will make for interesting reading and comparison with the Conisbee decision. There is certainly more to follow.