Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.
We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports ).
It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.
Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.
The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.
Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.
So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).
In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.
Perhaps Amazon needs to go back to the drawing board …
A link to an article on the BBC News App can be found below:
… well now Jordi Casamitjana can believe officially. He has just won part of his Employment Tribunal case (Casamitjana v League Against Cruel Sports) which confirms that ethical veganism is a protected philosophical belief in terms of Sections 4 and 10 of the Equality Act 2010.
Please note, however, that the Employment Tribunal is yet to determine whether Mr Casamitjana was dismissed because of these protected beliefs – that is another matter.
The full Employment Tribunal judgement doesn’t appear to be available yet, but I hope to post a link to this very soon.
In the meantime, please find a link below to the BBC News App which is covering the decision:
While we await the judgement of the Employment Tribunal in relation to the case of Casamitjana v League Against Cruel Sports, it’s interesting to note that veganism as a lifestyle choice seems to be on the rise.
Whether the Employment Tribunal will recognise Jordi Casamitjana’s ethical standpoint as a philosophical belief in terms of Sections 4, 10 and 13 of the Equality Act 2010 remains to be seen. Watch this space.
In the meantime, the BBC has produced an interesting article on the rise of veganism which can be found on its News App:
There is no such thing as the absolute right to free speech or free expression – not even in the United States of America. The US Supreme Court formulated the Miller Test as far back as 1973 which defined boundaries as to what forms of expression may constitute obscenity (see Miller v California 413 US 15 (1973)).
This country is (certainly) not America when it comes to the issue of freedom of speech. Although Articles 9 and 10 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998) do protect the individual’s right to freedom of conscience, thought etc and expression, there is recognition that the State may have good reason to restrict these rights (known as the margin of appreciation).
In an earlier Blog, I discussed the fact that the European Court of Human Rights ruled that denial of the Holocaust is not a belief which should be protected by law.
A famous example of the margin of appreciation being utilised (and approved by the European Court of Human Rights) in this country was the decision of Wingrove v UK . Here the film, Visions of Ecstasy, used highly sexualised imagery in its depiction of religious themes. Such a presentation would have been highly offensive to devout Roman Catholics (and a breach of the then, very strict blasphemy laws). Consequently, the British Board of Film Classification (the UK censor) refused to allow the film to be released. In this case, it was felt that someone’s artistic freedom of expression would cause grave offence to another group of people.
Wingrove is a really a moot point these days given that, in 2008, the UK reformed its blasphemy laws and the uncut version of Visions of Ecstasy was given a theatrical release (with an 18 certificate) in 2012. Yet it remains an interesting example of the tension between diametrically opposed viewpoints and how the State can be forced to mediate between these.
I was reminded about freedom of speech only this week when an Employment Tribunal put clear limits on an individual’s right to say certain things. The individual lost the case, but its aftermath has stirred up a hornet’s nest of recriminations, with even JK Rowling weighing in (on the employee’s side).
The case in question was Forstater v 1) CGD Europe 2) Centre for Global Development 3) Masood Ahmed Case No 2200909/2019 18 December 2019. It involved Maya Forstater who was engaged by the Centre for Global Development (a Think Tank) as a Visiting Fellow from January 2015 to 31 December 2018. Ms Forstater is a professional researcher and writer on public policy, tax and business. She provided services in this respect to the Think Tank. She is also had an active social media presence on Twitter.
Ms Forstater had issued a number of tweets about UK Government policy in which she questioned the right of trans females to call themselves women. Several of her colleagues complained about these and stated that they were ‘transphobic’ in nature. When her contract with the Think Tank was not renewed, she took the view that this decision had been motivated by her statements on Twitter. She, therefore, took the view that she was being subjected to direct discrimination by reason of her beliefs in terms of Sections 4, 10 and 13 of the Equality Act 2010. Furthermore, Forstater argued that her rights to freedom of thought, conscience and religion and expression (Articles 9 and 10 of the European Convention) had been breached.
As Employment Judge Tayler noted:
“When questioned during live evidence the Claimant [Ms Forstater] stated that biological males cannot be women. She considers that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.”
In dismissing Ms Forstater’s claim, Employment Judge Tayler stated:
“However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.”
A link to the Forstater judgement can be found below:
In arriving at his judgement, Employment Judge Tayler was influenced by an earlier decision which defined the scope of a person’s beliefs and whether they ought to be protected.
Mr Justice Burton sitting alone in the Employment Appeal Tribunal in the case of Grainger v Nicolson Appeal No. UKEAT/0219/09  formulated some pretty clear guidelines about what constitutes a belief capable of protection under the UK equality laws. His Honour stated that for a belief to be capable of protection, it must satisfy the following requirements:
It must be genuinely held.
It must be a belief and not … an opinion or viewpoint based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
It must attain a certain level of cogency, seriousness, cohesion and importance.
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
We may not have heard the last of Ms Forstater who may well be given to leave to appeal against Employment Judge Tayler’s judgement.
A link to the decision in Grainger v Nicolson can be found below:
Over the last few months, several of my blog entries have examined the impact of conduct or behaviour of employees which occur outside working hours. The focus of these blogs has largely centred upon social media use (or misuse if you prefer) by employees and the likely consequences of reputational damage which the employer might suffer.
The overwhelming conclusion that visitors to this site should now have is that I take the view that what employees do in their private lives can have a significant impact on work-place relations. Yes, primarily we do have rights to privacy, expression and association as enshrined in Articles 8, 10 and 11 respectively of the European Convention on Human Rights (amongst other things), but does this does not give us a blank cheque or free pass to behave badly or engage in downright dubious activities outside working hours. In other words, our Convention rights are not absolute.
I decided to write this recent blog entry on the back of a story which appeared in The Independent last month in conjunction with the lead up to the European Parliamentary elections held in Germany on 26 May 2019. It was reported that a German national – Dr Gunnar Beck – was a candidate for a far right political party in Germany called the AfD (the Alternative for Germany).
Dr Beck is currently employed as a law lecturer at SOAS, University of London and many of his colleagues and the students were outraged when they learned that he was running as an AfD candidate for one of Germany’s seats in the European Parliament. There were calls for Dr Beck to be dismissed from his post at SOAS.
As it happened, Dr Beck was one of 10 German MEPs elected for the AfD Party.
This story is a very good example of issues such as freedom of speech versus the employer’s duty to prevent discrimination and intolerance in the work-place.
What should employers do if they stand accused of being complicit in the spread of extremist views or beliefs by one of their employees? It can be a very difficult call to make.
A link to the story about Dr Beck as reported by The Independent can be found below:
Section 98(4) of the Employment Rights Act 1996 gives the right to dismiss employees (quite fairly) for misconduct – whether in the work-place or outside.
Furthermore, we live in times where political extremism of all shapes is much more prevalent. Again, the Employment Rights Act 1996 gives employers – primarily agents of the State e.g. the Police and the intelligence services (and other sensitive posts) – the right to dismiss employees on national security grounds (see Home Office v Tariq and KianivThe Secretary of State for the Home Department ). Such a dismissal – even where the evidence against the employee in question might be fairly tenuous – would still constitute an automatically fair dismissal.
Section 10 of the Equality Act 2010 does protect an individual’s philosophical beliefs, but this does not mean that all sorts of extremist views will necessarily be tolerated (or should be tolerated) by employers.
In Redfearn v Serco t/a West Yorkshire Transport Services (2005) the employer dismissed Mr Redfearn on health and safety grounds because of his membership of the racist British National Party (BNP). Redfearn’s political affiliations might lead to violence arising in the workplace.
This was not the last word on the matter and Redfearn took his claim to the European Court of Human Rights on the basis that the then United Kingdom equality laws did not provide sufficient protection to individuals like him who suffered discrimination on grounds of their philosophical (political) beliefs.
In Redfearnv UK  the European Court of Human Rights stated that Redfearn had been dismissed on account of his membership of the British National Party and this was an example of unlawful discrimination. This decision effectively ensured that the protected characteristic of a person’s philosophical beliefs (now contained in the Equality Act 2010) is capable of including political beliefs.
In Grainger plc v Nicholson (2009), the Central London Employment Tribunal stated that individuals seeking the protection of the law [now contained in Section 10 of the Equality Act] must prove that the belief was “a weighty and substantial aspect of human life and behaviour”.
A belief which demonstrates “a certain level of cogency, seriousness, cohesion and importance” and this belief is ultimately “worthy of respect in a democratic society, [that it] be not incompatible with human dignity and not conflict with the fundamental rights of others”.
This would seem to rule out protection for extremist beliefs, but as Redfearn v UK  clearly established employers will have to tread carefully. Essentially, the upshot of Redfearn is that employees are entitled to hold views which a large group within society may well find abhorrent and objectionable, but nonetheless such views fall within the protected characteristic of philosophical beliefs. Turning now to the employee holding such views or beliefs, the European Court of Human Rights made it very clear that such individuals did not have a right to act on these beliefs. So, for a person such as Mr Redfearn, he undoubtedly espoused racist beliefs by virtue of his BNP membership, but critically he had never acted upon these during his employment by, for example, subjecting a person from an ethnic minority group to unlawful, less favourable treatment.
In 2018, Councillor Christopher McEleny of the Scottish National Party took legal action against his former employer, the UK Ministry of Defence for alleged discrimination and constructive dismissal by reason of his political beliefs. An Employment Tribunal Judge, Frances Eccles ruled that McEleny’s beliefs in Scottish independence should be treated as a philosophical belief in terms of Section 10 of the Equality Act 2010.
Whether McEleny ultimately wins his Employment Tribunal claim on what exactly motivated his ex-employer to act in the way that it did towards him remains to be seen. It is a decision or outcome in which many people are undoubtedly interested.
Regular readers of this Blog will be aware that several of my previous articles have examined whether veganism could be a protected characteristic (a philosophical belief) in terms of Section 10 of the Equality Act 2010.
We still await the decision of the London Employment Tribunal in relation to the case of Jordi Casamitjana v League Against Cruel Sports (lodged in December 2018) which will give us a first indication as to whether veganism is capable of being a protected characteristic in terms of the Equality Act.
A link to an article on the BBC website about Mr Casamitjana’s claim can be found below:
I saw this on the BBC News App and thought you should see it:
A landmark tribunal will decide whether veganism is a “philosophical belief” akin to a religion.
In the meantime, Crossland Solicitors (an Oxfordshire based law firm) have carried out some really interesting research concerning the issue of vegan beliefs and work-place discrimination.
Nearly 1,000 employees and 1,000 employers took part in the research. The conclusions from this exercise are that nearly 45% of employees are of the opinion that they have experienced less favourable treatment due to their beliefs and nearly a third of respondents felt that they had been actively victimised by their employers because of their veganism. It seems to be the case that a large number of employers take the view that veganism is a fashion trend or a fad as opposed to an ethical and philosophical set of views which guides people in their daily lives.
Hopefully, the London Employment Tribunal will issue it’s decision in the very near future about Mr Casamitjana’s claim in order to provide some needed clarity to this area of the law.
A link to the research on Crossland’s website can be found below
Over the last few months, articles about veganism have cropped up pretty regularly on this Blog. It’s certainly a way of life for many people, but we still await a legal ruling from the Employment Tribunal as to whether it can be a protected, philosophical belief in terms of the Equality Act 2010 (see Casamitjana v The League Against Cruel Sports lodged at the end of 2018).
In any event, there still seems to be a lot of reservations about veganism as a lifestyle (and a philosophical outlook).
An interesting article appeared on the BBC News website about an athlete who had chosen to become a vegan. Many people criticised this decision (could a vegan compete successfully at this level?), but here’s a young man (Ross Mackay) who bases some pretty important life decisions around his vegan beliefs. Mackay is certainly experiencing and having to overcome a lot of prejudice when many in sporting circles emphasise the importance of meat as a source of protein in order to aid performance.
After playing international tennis in his teens, Ross Mackay says he really learned about food when he became vegan.
The vegetarian cyclist
It reminded me of the reaction of many in Europe when the American cyclist, Jonathan or ‘Jacques’ Boyer started to compete in big races. In 1981, he was the first US rider to take part in the Tour de France, taking part five times and his best ever finish was 12th in 1983). Boyer was famously (or infamously – depending on your point of view) a vegetarian. To the French, Boyer’s US nationality was slightly less controversial than his diet (He didn’t eat meat and ate a lot of nuts and berries). Even his own directeur sportif (manager or head coach) Cyrille Guimard spoke of Boyer in slightly disbelieving terms – un marginal i.e. French for a hippy, an outsider or something approximating these attributes. As Ross Mackay would attest, it seems that attitudes in sport haven’t changed a lot in the intervening years.
A link to a short YouTube video where Boyer talks about his experiences of racing in Europe can be found below (Spoiler alert: Boyer refers to Lance Armstrong before he was exposed as a cheat).