Protection for a philosophical belief: why some beliefs but not others?
Fergus McCombie employment law expert at 36 Commercial comments on recent tribunal decision.
The contrast between two recent employment tribunal decisions controversially draws the boundary between a philosophical belief that is legally protected and one that is not.
Under the Equality Act 2010, the holding of a religious or philosophical belief is a protected characteristic. Discrimination against a person for holding the belief is unlawful in the circumstances the Act goes on to describe.
The difficult question is: what counts as a protected philosophical belief?
In Casamitjana v. The League Against Cruel Sports, an Employment Judge has recently decided that ethical veganism qualifies for protection. The claimant gave evidence that veganism was, for him, an entire way of life. In order to avoid clashes with insects or birds he would walk rather than take the bus. Other witnesses gave evidence about veganism as a cohesive belief system. According to Jeff McMahan, White’s professor of moral philosophy at Corpus Christi, Oxford, "even if veganism is not morally required, it is morally better than omnivorism or vegetarianism”. Indeed a previous tribunal has ruled that vegetarianism is a mere lifestyle choice.
Mr Casamitjana was not harming any body – indeed that was the point.
But the protection may not extend to those whose belief system infringes the rights of others. In Forstater v. CGD Europe and others, decided shortly before Christmas 2019, the claimant’s belief that sex is biologically immutable - you are either male or female and that cannot change - was held, in its absolutist nature, to be "incompatible with human dignity and fundamental rights of others”. This conclusion was said not to be based on the manifestation of that belief, such as a Twitter dispute. However, said the Judge, the claimant’s insistence on calling a person by the appropriate pronoun (in her view) renders the belief "not worthy of respect in a democratic society” because it is incompatible with the right of a person to be recognised in law as the sex to which they have transitioned.
This decision may best be explained by reference to the Judge’s finding that "if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate”. However, it does nothing to disentangle the manifestation of a belief from the holding of it. According to this judgment, one cannot simply ask whether the belief would be protected in law if it were entirely privately held, and reserve issues about the manifestations of it to the factual matrix when deciding whether any discrimination against the believer was unlawful. This is not a wholly new legal point, but in today’s polarised world, its standpoint would seem to be more controversial than ever.