A vegan is claiming discrimination after being sacked from his job at the League Against Cruel Sports. The emphasis of the BBC story is on whether or not Mr Casamitjana’s beliefs will be protected under the Equality Act as a philosophical belief. There is to be a hearing next year to decide the issue and if he is successful then a further hearing will decide whether or not his dismissal amounts to discrimination.
The BBC describes the case as a landmark development, given that there has been no ruling from the courts so far on whether or not veganism can amount to a philosophical belief. To be fair, they are simply quoting the employee’s lawyer, who is obviously keen to talk up the significance of the case. But I don’t see this as a landmark case at all. Of course ethical veganism is capable of amounting to a philosophical belief. I can’t imagine anyone arguing otherwise.
Simply being a vegan will not be enough to amount to a protected characteristic, however. The practice of not eating animal products will need to be part of an overall set of beliefs about the rights of animals that achieve the level of cogency and seriousness necessary to qualify under the Act. But given that the courts have already held that the test can be met by a belief in man-made climate change (Grainger v Nicholson) or the proper and efficient use of public money in the public sector (Harron v Chief Constable of Dorset Police) it would be downright astonishing if it was held that ethical veganism did not qualify as a philosophical belief.
The problem that Mr Casamitjana is likely to face is not in establishing that he has a protected characteristic, but in establishing that he has been discriminated against. He has to show that he was dismissed because of his belief in veganism. According to the BBC:
Jordi Casamitjana says he was sacked by the League Against Cruel Sports after disclosing it invested pension funds in firms involved in animal testing.
If that is really how he is putting his claim then I don’t see how he can win. Dismissing someone for complaining about your pension fund investment strategy might be unfair – depending on the circumstances – but it is not the same thing as dismissing someone because of their philosophical belief. Is he really arguing that the employer would have allowed other employees to make the same complaints that he did, but that they have chosen to dismiss him because of the beliefs that prompted his behaviour? That seems pretty unlikely.
It is not as though it is only ethical vegans who might object to the activities of the pension fund or choose to complain about them. Surely the employer is just going to say ‘we would have dismissed anyone who behaved in this way’. Why on earth would they take a more serious view of the employee’s conduct just because it happened to be motivated by his commitment to ethical veganism? Direct discrimination is a narrow right – as the Supreme Court has recently held – confined to cases where it is the protected characteristic itself that is the reason for the treatment, rather than some other factor that is merely connected with it.
For what it’s worth, I don’t see that this is a case of indirect discrimination either. Indirect discrimination isn’t a consolation prize you get when your direct discrimination claim has failed – it has its own particular requirements. There needs to be a ‘provision, criterion or practice’ (PCP) which causes a particular disadvantage to a group sharing a protected characteristic. Suppose in this case that there was a PCP amount to a rule saying ‘don’t complain about the pension fund investment strategy’. I struggle to see how that causes a particular disadvantage to vegans. All sorts of people might have cause to complain about different aspects of the strategy and it is difficult to see what disadvantage you suffer by complying with the employer’s instruction and not making a complaint.
If I were advising the League Against Cruel Sports – and I’m not – I would tell them to concede that Mr Casamitjana has a protected characteristic and focus on their argument that they didn’t discriminate against him. I don’t see the point in wasting time and legal fees arguing that vegans aren’t protected by the Equality Act when they almost certainly are. It might seem sensible to oppose every aspect of a claim that you are contesting, but I don’t think it would be a good look for the League Against Cruel Sports to argue that ethical veganism is not serious or cogent enough to amount to a philosophical belief. Better, surely, to concede that point and focus on the reason for dismissal.