Religion or belief discrimination: Are beliefs on veganism and gender transition protected?

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman looks at the criteria applied by employment tribunals in recent cases to determine the sort of philosophical beliefs that should be protected by the Equality Act 2010.

To read the press in recent weeks you would think that the employment tribunal system is swamped with claims for religion and belief discrimination. The truth of course is that such claims remain rare - but are likely to be particularly controversial and newsworthy.

Two tribunal cases in particular attracted press attention. In Casamitjana v League Against Cruel Sports ET/3331129/2018, the employee claimed for discrimination based on his ethical vegan beliefs. The merits of the claim have yet to be heard, but the tribunal has ruled that his beliefs are capable of amounting to a philosophical belief under the Equality Act 2010. By contrast, in Forstater v CGD Europe Forstater v CGD Europe and others ET/2200909/2019, a researcher claimed that she was refused work because of her beliefs about the nature of gender transition and the importance of biological sex. In that case the tribunal held that her beliefs were not protected because they conflicted with the rights of others and were not worthy of respect in a democratic society.

In both cases the tribunal applied the guidelines derived from the Employment Appeal Tribunal (EAT) case of Grainger plc v Nicholson [2010] IRLR 4 EAT, a case involving the philosophical belief in anthropogenic climate change. In that case, the EAT listed the criteria - derived from the case law of the European Court of Human Rights - to be used in determining the sort of philosophical beliefs that should be protected by the Equality Act 2010. Briefly these are that the belief must be genuinely held, must not simply be a viewpoint based on the information currently available, must concern a "weighty and substantial" aspect of human life and behaviour, must achieve a certain level of "cogency seriousness, cohesion and importance" and must be worthy of respect in a democratic society - not being incompatible with human dignity or conflicting with the fundamental rights of others.

Mr Casamitjana easily cleared these hurdles in respect of his ethical vegan beliefs. Ms Forstater was held to satisfy all of the requirements but the last one. The tribunal held - with a certain logic - that the claimant's denial that individuals can change sex contravened their right - recognised by the European Court of Human Rights - to do just that. It was not therefore worthy of respect in a democratic society.

But is this really a ground to deny someone the protection of the Equality Act 2010? It is of course right that the UK courts should look to the European Convention on Human Rights when interpreting the scope of the protected characteristic. A belief that is protected by the Convention must also be protected by the Equality Act 2010. But there does not seem to be any principled reason why a belief that is not protected by the Convention should therefore be excluded from the scope of the Equality Act 2010. The Act says that it applies to "any religious or philosophical belief". Why should our courts interpret that to limit philosophical beliefs to those that meet the criteria set out by the European Court of Human Rights?

Under the European Convention on Human Rights religious and philosophical beliefs are protected by Article 9, which deals not only with the right to hold beliefs but also the right to "manifest" them. In that context, it makes perfect sense to consider the cogency of the beliefs and how acting on them might impact on the rights of others. But just because an individual's conduct based on their belief might cause difficulties, is that any reason to exclude the belief itself from the scope of the Equality Act 2010?

Many people would resist the notion that their beliefs can be separated from the way in which they behave. What use is it to have the right to believe something if you don't have the right to act in accordance with that belief? Nevertheless there must surely be a distinction. We should remember that while human rights law is important in the interpretation of the Equality Act 2010, it is still the Equality Act 2010 that needs to be applied - and that Act draws a distinction between direct and indirect discrimination. Direct discrimination occurs when the protected characteristic itself is the reason for the less favourable treatment. In another recent case, Mackereth v Department for Work and Pensions and another 1304602/2018/ET, the issue was the employer's insistence that trans patients undergoing a medical assessment as part of their benefits claim should be addressed using their preferred name and pronouns. Dr Mackereth claimed that his religious beliefs meant that he could not in good conscience comply with that requirement and the imposition of the requirement amounted to discrimination. The employment tribunal dismissed his claim. One reason it gave was that Dr Mackereth's beliefs were not protected because they were incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals. This is a contentious finding because the Grainger guidelines were intended to apply to philosophical beliefs - it is not at all clear that they can also be used to limit the scope of protected religious beliefs. The tribunal was, however, on safer ground when it held that there was in any event no direct discrimination because the rule imposed by the employer applied to everyone regardless of their individual beliefs. The tribunal did not accept that that Dr Mackereth's refusal to comply was not only prompted by his belief but was actually a part of it.

The manifestation of an employee's belief is best dealt with as a matter of indirect discrimination. If the employee can show that the rule causes a particular disadvantage to those who share the employee's belief because it limits their ability to act in accordance with it, that might well be the basis of an indirect discrimination claim. The extent to which that behaviour is worthy of respect is a matter that can be dealt with when considering whether or not the employer's rule is a proportionate means of achieving a legitimate aim. As it happens, the tribunal in Mackereth held that the employer's requirement as to how patients should be addressed met this test and there was therefore no indirect discrimination even if Dr Mackereth's beliefs were protected. That seems a better approach than asking a tribunal to determine which beliefs are or are not "worthy of respect".

The Grainger guidelines seem to be widely accepted - they are even set out in the Equality and Human Rights Commission statutory code of practice on employment - but limiting the scope of the protected characteristic to beliefs that fit within those guidelines strikes me as unnecessary given the difference between direct and indirect discrimination. Perhaps one of the tribunal cases that have attracted so much attention in recent months will result in the Court of Appeal - or even the Supreme Court - being given the opportunity to make an authoritative ruling.