Philosophical Belief Discrimination: Protection in the Work Place
Two employment law cases have hit main stream media in recent weeks. Both cases involved employees who felt that they had been discriminated against by their employer because of their beliefs.
Belief: Sex is Biologically Immutable
The first case, brought by Maya Forstater, hit the headlines due to the controversial Tribunal judgment about her beliefs. Maya had tweeted (in her personal capacity) numerous tweets which questioned the rights of Trans Women to call themselves “women”.
Maya’s colleagues, who thought the tweets to be transphobic, brought them to the attention of her employer, who did not renew Maya’s fixed term contract. Maya had also been accused of “mis-gendering” a non-binary individual.
Maya felt as though she was being discriminated against because of her beliefs; that there are two biological sexes and that Trans men are still biologically women and Trans women still biologically men, even if they have been issued with a Gender Recognition Certificate under the Gender Recognition Act.
A preliminary hearing took place to decide whether Maya’s beliefs were “philosophical beliefs”, which were worthy of being protected under the Equality Act 2010. To satisfy the legal test, a person must satisfy five criteria:
- The belief must be genuinely held
- It must be a belief and 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
This test was identified in a case where it was decided that a belief in action against climate change, did amount to a philosophical belief worthy of protection.
In Maya’s case, the Tribunal found that, whilst she satisfied the criteria numbered 1 to 4 above, her beliefs were not worthy of respect in a democratic society and that they were incompatible with human dignity and conflicted with the fundamental rights of others. Therefore, she lost this aspect of her claim.
The judgment caused controversy in the media, with many (including celebrities) tweeting that the judgment had implications for peoples’ right to free speech.
It is important to note that the right to freedom of speech is a qualified one, meaning it is not absolute, and must be balanced with the rights of others to not feel harassed or harmed.
Belief: Ethical Veganism
The second case was brought by ethical vegan, Jordi Casamitjana, after he felt discriminated against by his employer, an animal welfare charity. He was dismissed after he had informed his colleagues that the pension scheme, which they were all enrolled in, was not an ethical one, and invested in companies which harmed animals.
The Tribunal, at a preliminary hearing to decide whether his belief was protected under the Equality Act 2010, decided that ethical veganism satisfied the above criteria.
Crucially, it met criterion 5 and the Tribunal deemed that ethical veganism is worthy of respect in a democratic society. It is therefore a “philosophical belief” and is worthy of protection from discrimination.
It is important to note that the distinction between ethical veganism and dietary veganism. People who just follow a plant-based diet will not be protected. This judgment applies to those who follow a completely vegan lifestyle, for ethical reasons, and who avoid the use of animal products in their daily lives.
The case continues.
The practical implication of this judgment is that employers must not do anything to discriminate against an employee because of their ethical veganism beliefs as, although not binding, employees will feel empowered by this (very public) judgment. Each case will, of course, turn on its own facts in practice.
Both cases highlight that the arena of discrimination claims relating to the protected characteristic of “philosophical belief”, is expanding.
The potential for a belief to become a protected characteristic should not be underestimated and employers will need to demonstrate a respect for beliefs that are strongly held by their employees and accommodate them in the workplace where appropriate.
If you would like more information on any of the above, please contact a member of our Employment Law team today.