In the November 2019 issue of Legal Action (page 7), I commented that protection on the basis of philosophical belief is one of the most interesting areas of case law development under the Equality Act 2010, as I described the case of Conisbee v Crossley Farms Ltd and others Case No 3335357/2018, 6 September 2019.1Bailii reference: [2019] UKET 3335357/2018. Mr Conisbee lost at the employment tribunal in his case to have vegetarianism recognised as a philosophical belief.

Since then, on 21 January 2020, another employment tribunal (with the same judge) has given judgment in the case of a committed vegan, Casamitjana Costa, holding that ‘ethical’ (as opposed to health-based) veganism is protected (Costa v League Against Cruel Sports Case No 3331129/2018).2Bailii reference: [2020] UKET 3331129/2018. Ethical veganism goes much further than diet and involves not wearing clothes or shoes from animal sources.

In both cases, the claimants were found to have a genuine belief in veganism/vegetarianism. The cases were therefore about the belief system, not the individuals, which is why they have generated wider interest.

Why the difference between the two outcomes?

In Conisbee, the tribunal found that vegetarianism in itself could not be a philosophical belief. The tribunal in that case accepted the respondent’s argument that vegetarianism was not a belief as to a ‘weighty and substantial’ aspect of human life and behaviour (para 15); because it ‘is not about human life and behaviour, it is about preserving the life of animals and fish (para 29).

A further reason for finding against Mr Conisbee was that vegetarianism was considered to lack a sufficient level of ‘cogency, seriousness, cohesion and importance’ (para 15) because it was considered that there are different reasons for people being vegetarian: ‘Vegetarians adopt the practice for many different reasons; lifestyle, health, diet, concern about the way animals are reared for food and personal taste’ (para 41).

Given that these considerations did not apply to the subjective views of the claimants but to the belief systems themselves, it is hard to see why this would not prevent veganism from having philosophical belief status, as much as vegetarianism.

Mr Costa’s case may certainly have been helped by the fact the respondent, the League Against Cruel Sports, agreed, as a preliminary issue, that ethical veganism can be protected. Nevertheless, and helpfully, the tribunal felt obliged to be satisfied that this was properly the case and then to give full reasons.

Partly, too, it may be because the claimant was a remarkable example of someone who lived every aspect of his life rigorously conscious of the need to avoid harm to any living thing – expressed as the concept of ‘ahimsa’, a belief common to Buddhism, Hinduism and Jainism. He had converted to a vegan diet ‘instantly’ in 2000 (para 10), had got rid of his non-vegan clothes and had worked in animal protection most of his working life.

Furthermore, Mr Costa’s case was supported by detailed and expert evidence from the Vegan Society, whose legal officer gave live evidence, although without being cross-examined. He also had the benefit of very highly skilled representation.

So, perhaps this is a worry: to succeed, it is not enough to show your belief is genuinely held. The stark difference between the two cases is the degree of rigour, almost extremism, required to gain legal protection.

This would appear to be in contrast to the protection on religious belief grounds: for instance, a worker may suffer (and be protected against) discrimination simply for being Catholic, without necessarily being a particularly ‘good’ Catholic in the eyes of the church. In GMB v Henderson UKEAT/0073/14/DM; UKEAT/0075/14/DM; UKEAT/0314/14/DM, 13 March 2015; [2015] IRLR 451; November 2015 Legal Action 36, the Employment Appeal Tribunal rejected the proposition that the legislation gave less protection to philosophical beliefs than religious ones.

As I said in November, this area of the law is still developing in interesting ways.