An employer is likely to find a wide variety of beliefs held by its employees. We’re all aware that some people hold (and perhaps we share) firm beliefs as regards climate change, and there is certainly a growing trend towards a vegan lifestyle and beliefs. Others may hold beliefs in spiritualism, life after death, and the ability of mediums to contact the dead; a belief that poppies should be worn in early November; a belief that the 9/11 and 7/7 attacks were “false flag” operations; a belief that lying is always wrong; a belief in the “higher purpose” of public service broadcasting; and beliefs about anti-fox hunting (these are all examples of beliefs that have been considered by the Employment Tribunals).
So when do beliefs attract legal protection at work?
Under the Equality Act, it is unlawful to discriminate, harass, or victimise workers or job applicants on the grounds of their religion, religious belief, or philosophical belief. “Religion or belief” is a protected characteristic under the Equality Act (like age, sex, sexual orientation, race, and disability, for example). “Religion” means any religion, and a reference to religion includes a reference to a lack of religion. “Belief” means any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief.
Employers may feel fairly confident in identifying a religious belief, but it is clear from case law that a philosophical belief is much more difficult to identify, and this makes it a particularly tricky area for employers. The Equality and Human Rights Commission’s (EHRC) guide to religion or belief states “an employer should only question a belief in the most exceptional circumstances where, for example, it is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is genuinely in doubt”. Employers should therefore consider very carefully how to respond to employees’ beliefs.
In 2009, an Employment Appeal Tribunal decision defined the criteria of a philosophical belief. It 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
- be worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others
Discrimination against a person because of their belief may be direct (such as when an individual is treated less favourably) or indirect (such as when a policy, practice, or procedure disadvantages those who hold a belief or religion). Discrimination may also take the form of harassment or victimisation. Harassment occurs when an individual experiences unwanted conduct relating to his or her belief, and victimisation involves the unfair treatment of a worker who has made or supported a complaint about discrimination.
Employees are equally protected from discrimination because they are not part of a religion or belief system.
“Philosophical belief” for the purpose of discrimination protection has been held to include beliefs in climate change, in anti-fox hunting, in the “higher purpose” of public service broadcasting, in public service for the common good, that lying is always wrong, in spiritualism, life after death, and the ability of mediums to contact the dead, and in Scottish independence.
However, as demonstrated by a recent, perhaps surprising, decision on whether vegetarianism may be a protected belief (the Employment Tribunal held that it was not, because it concerns a lifestyle choice rather than being about human life and behaviour), it is very difficult to predict which philosophical beliefs will qualify, and employers should exercise caution in dismissing any beliefs that are not on the above list. The key to protection under the Equality Act is the philosophical belief itself – with the behaviours being the consequence of that belief. In the case about vegetarianism, the Employment Tribunal stated that not eating meat is only the consequence of being a vegetarian, not the belief system behind it. The Tribunal in that case drew a distinction with veganism, where there is a clear cogency and cohesion in vegan belief. Last week, a Tribunal was due to hear the case of an ethical vegan, Mr Casamitjiana, who claims he was dismissed by the League Against Cruel Sports for disclosing that it was investing pension funds into firms involved with testing on animals. The hearing was postponed, so we shall have to wait a little bit longer to hear the Tribunal’s decision in that case.
Employers should be mindful to respect and respond sensitively to employees’ genuinely held beliefs. Dietary choices, for example, should be catered for, and employers should ensure that any negative behaviours towards staff for holding beliefs capable of protection are dealt with under their disciplinary policy where appropriate. Employers should also ensure they regularly update their relevant policies as well as the training of managers and other relevant staff members.