The decision has raised the important distinction between the vegan moral conviction or philosophy and vegetarianism, in terms of whether or not they quality for protection. It is sufficiently clear that veganism is a fundamental belief or conviction that is protected under human rights law.
A UK employment tribunal has ruled that a Claimant’s belief in
vegetarianism is not a protected characteristic in terms of UK
anti-discrimination provisions, in a case called Conisbee v Crossley Farms
Limited [See
Full Decision HERE].
In concluding that the Claimant’s beliefs did not satisfy the applicable
test for protection, the Tribunal made a distinction between vegetarianism
and veganism, suggesting that veganism would be considered a protected
characteristic, as it concerns a coherent, logical philosophical conviction,
in contrast to vegetarianism.
As others have noted long before me, the “ethical vegetarian” position is
inconsistent and lacks cogency. It is illogical to avoid the consumption of
animal and fish flesh on the basis that it is wrong to kill animals for
food, and yet continue to consume dairy and/or eggs, for which animals are
also killed. Indeed, it does not make sense to be opposed to the killing of
animals for food while participating in the commodification of animals for
other purposes, whether clothing, cosmetics, “entertainment” or any other
purpose. Once we acknowledge that animals are alive in the same way we are,
thinking, feeling beings who experience, form relationships and have the
desire to live, the only logical moral position is to avoid participating in
their exploitation in any way, in so far as we possibly and practicably can.
The only cogent moral position is to be vegan.
While the reasoning of the Tribunal Judge is not as explicit as this, it
does at least allude to it. In considering the requirement that a belief or
conviction must “attain a certain level of cogency, seriousness, cohesion
and importance” in order to be protected, the employment judge noted that:
“the reason for being a vegetarian differs greatly among themselves, unlike veganism where the reasons for being a vegan appear to be largely the same. Vegetarians adopt the practice for many different reasons; lifestyle, health, diet, concern about the way animals are reared for food and personal taste. Vegans simply do not accept the practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared, the clear belief that killing and eating animals is contrary to a civilised society and also against climate control. There you can see a clear cogency and cohesion in vegan belief, which appears contrary to vegetarianism, i.e. having numerous, differing and wide varying reasons for adopting vegetarianism.” [41]
While this is not the description of veganism I would use, it nevertheless
recognises the coherency in the vegan moral conviction that it is wrong to
use, harm or kill animals for any purpose.
In addition to making a distinction between vegetarianism and veganism in
terms of cogency and coherence, the above passage also speaks to the fact
that the protections do not arise by virtue of the person identifying as a
follower of a particular way of life; instead the protections arise if a
person’s beliefs or convictions meet the test for protection. If they do
meet the test that gives rise to the right to live according to the
conviction and the right not to be discriminated against on account of it.
It is sufficiently clear from the legal provisions, guidance and prior
caselaw, that the belief or conviction at the heart of “ethical veganism”
(or veganism, properly understood) will be considered protected, but that
does not mean that anyone who self-identifies as “vegan” has these
protections. While the Tribunal has said there is only one reason people are
vegan, and I agree with that, there are many who refer to themselves as
vegan because they follow a plant-based diet, whether for health, because it
is better for the environment or simply because they prefer it. Whether or
not the protections would apply to them will depend if they are able to
persuade a court or tribunal that their beliefs meet the applicable test.
This note sets out the protections applicable to veganism under human rights
and equality law, and compares that to the position for vegetarianism.
Veganism as a Protected Belief or Conviction
There are two rights at play here. The first is the human right to freedom
of thought, conscience and religion; the second is the right to equality or
freedom from discrimination on the grounds of religion or belief. They are
separate, but related, rights.
It has long been confirmed that the human right to freedom of thought,
conscience and religion applies equally to non-religious fundamental beliefs
as to religious beliefs. In order to qualify for protection a belief must
meet a threshold test, that it “denotes a view that attains a certain level
of cogency, seriousness, cohesion and importance” is “worthy of respect in a
democratic society” and “not incompatible with human dignity”. Applying that
test, veganism has been found to be protected.
In the case of W v UK 18187/91 the European Commission of Human Rights was
presented with a claim by a prisoner who asserted that his “vegan beliefs
prevented him from working with animal tested products (i.e. dyes).” He had
sought to be exempted from working in the prison print room, and was
challenging the prison’s refusal of his request. In summarising the nature
of the claim the Commission noted: “The Commission recalls that the
applicant refused to work in the print shop because as a Vegan he wished to
avoid contact with animal products or products that had been tested on
animals.” The Commission noted that “the UK government [did] not contest
that Veganism is capable of concerning “conscience” or “belief” within the
meaning of Article 9 of the Convention”, and found that:
“The Commission’s case-law establishes that this provision protects the
sphere of private, personal beliefs and the acts which are intimately linked
to these attitudes….The Commission finds that the Vegan convictions with
regard to animal products fall within the scope of Article 9 para 1 of the
Convention.” [W v UK, also referred to as H v UK: H. v United Kingdom, App.
No. 18187/91, European Commission of Human Rights, (1993) 16 E.H.R.R. CD44)]
Protection for non-religious beliefs arise from our recognition, as a
society, that moral convictions are of fundamental importance to human
beings and humans ought to be free to live according to those convictions,
so long as they are not causing harm to others in doing so. Other
non-religious fundamental beliefs or convictions which have been found to be
protected include pacifism and the conviction that it is wrong to inflict
physical violence against children.
There do not appear to be any decisions finding that non-religious
vegetarian beliefs meet the test for protection. Although vegetarianism has
featured in freedom of thought, conscience and religion cases, it appears
only to have done so where a vegetarian diet was an aspect of a religious
belief. (For example, Vartic v Romania and Jakobski v Poland,
where the claimants followed a vegetarian diet in accordance with their
Buddhist beliefs.) [In the House of Lords decision in R v Secretary of State
for Education and Employment and others ex parte Williamson 2005 UKHL 15,
Lord Walker did refer to vegetarianism as an “uncontroversial example” of a
non-religious belief falling with the protection [Walker at 55] but
vegetarianism was not at issue in that case and the remarks were not
relevant to the decision reached.]
Discrimination on Account of Veganism
Discrimination on the basis of a number of characteristics is prohibited;
one of those characteristics is “religion or belief”, where belief is a
“philosophical belief”. The scope of “religion and belief” is interpreted in
line with the human right to freedom of thought, conscience and religion,
and so a very similar test is applied to the one described above.****
Therefore, although we have not yet had a UK employment tribunal decision
directly on the question whether the vegan conviction that it’s wrong to
exploit, harm or kill animals is a protected philosophical belief, it is
reasonably clear that our employment tribunals should find that it is when
they apply the relevant test taking into account prior decisions, including
the decision in W v UK in which veganism was held to be a protected belief.
While we have not had an employment case in which veganism was directly in
issue, we have had two cases which demonstrate the approach our employment
tribunals take in “protected belief” claims. In the case of Grainger v
Nicholson the Employment Appeals Tribunal (“EAT”) found that “a strongly
held philosophical belief about climate change and the environment” was
capable of being a “philosophical belief” in terms of the
anti-discrimination provisions. In its reasoning the EAT referenced the
decision in W v UK on veganism. In another case, Hashman v Milton Park
Limited, a tribunal found that a belief in the sanctity of life and that
hunting foxes was morally wrong was a protected philosophical belief. Mr
Hashman was vegan, but it was not the vegan philosophy or conviction that
was the relevant “belief” in that case, but rather his specific belief that
it is wrong to hunt animals for “sport” or pleasure.
It is reasonably clear that if our tribunals follow the EAT’s approach in
Grainger, as they should, taking note of previous human rights decisions as
well as equality decisions, they ought to conclude that the vegan conviction
is protected as a philosophical belief. If they did not follow previous
decisions, and found that the vegan conviction was not protected, they could
be appealed to the Court of Appeal or the Court of Session, from there to
The Supreme Court, and potentially on to Europe (depending on the outcome of
Brexit).
It should be noted that the Tribunal decision in Conisbee was one of first
instance and so is open to appeal. The decision was just issued, on 6th
September, so it remains to be seen if it will be appealed.
If the decision is appealed the EAT may find that the Tribunal erred by
applying the test to “vegetarianism” as an objectively defined philosophy,
as opposed to the subjective beliefs espoused by the Claimant. Prior
decisions applying the philosophical belief test have looked closely at the
precise beliefs set out by the claimant and applied the test to those stated
beliefs, rather than attempting to define the “ism” in question and decide
if it could ever qualify as a protected belief. Indeed, previous decisions
have confirmed that the belief need not amount to an “ism” at all.
In the Conisbee case it was not clear that the Claimant avoided consuming
animal and fish flesh because of concern for animals, or due to an
opposition to killing animals per se. In giving evidence regarding their
beliefs, in a written statement, the Claimant stated that “…animals should
not be bred, caged or killed for the purpose of food”, and “I happen to
believe that the environment would be a better place without slaughtering
animals for food.” There is a real lack of clarity there in terms of what
the Claimant’s beliefs are.
It is perhaps not surprising therefore, that while the Tribunal accepted
that the Claimant was vegetarian and that he genuinely believed in
vegetarianism, it found that this was an opinion or point of view, rather
than a belief or conviction that attracts protection. In considering the
requirement that a belief or conviction be about a weighty and substantial
aspect of human behaviour, they decided that that “vegetarianism is not
about human life and behaviour, it is a life style choice.” [40]
Conclusion
The decision has raised the important distinction between the vegan moral
conviction or philosophy and vegetarianism, in terms of whether or not they
quality for protection. It is sufficiently clear that veganism is a
fundamental belief or conviction that is protected under human rights law,
will people holding this belief entitled to live according to it, and that
it is a philosophical belief protected in equality law in terms of
anti-discrimination provisions. Vegetarianism, on the other hand, does not
necessarily meet the test for protection under either human rights or
equality law.
This is a brief overview of the law for the purpose of assessing the impact,
or otherwise, of the tribunal decision. We have set out the relevant law
applicable to veganism in much more detail on our website pages on
VEGAN RIGHTS.
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