Unprotected opinions versus protected beliefs – where is the line?

Last month's decision of the Norwich Employment Tribunal in Conisbee v Crossley Farms has once again brought the issue of philosophical beliefs under the Equality Act 2010 into the HR spotlight. 

In that case, it was held that vegetarianism is not protected, but the judgment was more promising for those campaigning to have veganism covered by the 2010 Act.

On the face of it, the Tribunal's rational appears sound. In order to qualify for protection, an individual must:

• have a genuinely-held belief (so not just a viewpoint or opinion);
• that relates to a weighty and substantial aspect of human life and behaviour, and
• is worthy of respect in a democratic society, but which does not conflict with the rights of others.

The issue that the Tribunal identified in Conisbee was that there are a variety of reasons why someone may decide to be vegetarian – for example; personal taste, perceived health benefits or as a lifestyle choice – and that it therefore didn't meet the requirement for protection. So called "ethical veganism" on the other hand could potentially qualify for protection. According to the Tribunal, there is a "clear cogency and cohesion" in a belief in veganism that is not present in relation to vegetarianism.

In practice, this is a fairly nuanced distinction and it is therefore not surprising that HR teams regularly face difficulties when dealing with philosophical belief cases. The dividing line between an unprotected opinion and a protected belief is often very fine, with certainty on the status of a particular alleged protected belief frequently only being obtained following litigation. This being the case, there will inevitably be a number of alleged beliefs that have not been – and may never be – tested before a Tribunal.

The philosophical belief provisions of the 2010 Act could, through time, become much wider in scope.  We have already seen a Scottish Tribunal hold that a belief in Scottish independence is capable of protection and we therefore couldn't rule out a similar challenge in relation to, for example, Brexit.  Equalities and Human Rights Commission guidance also notes that a belief against man-made climate change could be protected and we may see cases on this topic given the recent high-profile protests throughout the UK. There is no "bottom line" as to the number of people that must share a belief for it to be protected and – in theory – a genuine belief held by a single individual could be capable of protection.  However, there would obviously be the question of whether a belief held only by a single individual would relate a weighty and substantial aspect of human life and behaviour.

Whilst the issue of protected philosophical beliefs has perhaps not historically been high up on the HR agenda, recent Tribunal decisions – coupled with the prospect of uncapped compensation claims in discrimination cases – is bringing this area more sharply into focus. It is easy to see why opinionated employees that often discuss their views or beliefs at work could be viewed as a problem by HR teams. However, when dealing with such issues, it will be important to consider whether the employee may hold a belief that is capable of protection and whether taking action in relation to the employee's behaviour could potentially result in a claim.

That is, of course, not to say that employees who hold beliefs capable of protection can behave with impunity. Treatment unconnected with an employee's beliefs will naturally not trigger protection – albeit employees could of course still attempt to argue a causal connection in a bid to get a discrimination claim into the Tribunal. Employers should therefore give consideration to whether an employee's beliefs may have impacted their behaviour, in order to ensure that businesses are not inadvertently caught out by allegations of this nature.

This article was first published by People Management.

We discuss this and other similar cases in the 'Philosophical beliefs' episode of our podcast, Employment Law Focus. Subscribe now or listen online. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.