Employment and Immigration Law Update – What is a protected religion or belief?

Two recent employment tribunal decisions have considered the extent of the protection from religion or belief discrimination under the provisions of the Equality Act 2010.  

As judgments made by employment tribunals, these decisions have no binding authority; a different tribunal may reach a different conclusion on the facts. However, they are both a good illustration of how tribunals will approach the issue of religion and belief discrimination.

In the first case, an employment tribunal has considered whether vegetarianism is a belief that is protected under the provisions of the Equality Act 2010.

Conisbee v Crossley Farms Ltd and others ET/3335357/2018

Facts

The employee resigned after around five months of service and brought a claim for discrimination on the ground of religion or belief, based on his vegetarianism. A preliminary hearing was held to determine whether or not vegetarianism is capable of satisfying the meaning of a philosophical belief under the Equality Act 2010. 

Employment tribunal decision

The tribunal held that the claimant’s belief did not qualify for protection under the Equality Act 2010. It accepted that he has a genuine belief in his vegetarianism and that it is a belief worthy of respect in a democratic society, but it failed to meet the hurdles required for protection. A belief must have a similar status or cogency to religious beliefs to be protected. The tribunal highlighted the fact that vegetarians adopt the practice for many different reasons (such as lifestyle, health, diet, animal welfare). In contrast, the tribunal considered veganism to have a clear cogency and cohesion, meaning that it is more likely to be a protected belief.

Consequences

The decision illustrates how a tribunal will approach a claim based on a philosophical, rather than a religious belief. The EAT has previously held that a belief in climate change was a philosophical belief qualifying for protection, and EHRC guidance on religion and belief states that “beliefs such as humanism, pacifism and vegetarianism and the belief in man-made climate change, are all protected”. Whilst the tribunal in this case was not persuaded that vegetarianism meets the hurdle of a protected belief, the distinction between vegan and vegetarian beliefs is arguably difficult to maintain.

In the second case, the employment tribunal considered whether a Christian doctor with strongly held beliefs relating to transgenderism had been discriminated against on the grounds of religion or belief.

Mackereth v The Department for Work and Pensions and another ET/1304602/18

Facts

The claimant was a doctor engaged by the Department for Work and Pensions to carry out health assessments. During the initial period of training he indicated that, due to his Christian beliefs, he would be unable to address transgender patients by their chosen pronoun. The doctor stopped work and eventually resigned after refusing to comply with the employer’s policy on dealing with transgender clients. He brought claims for discrimination and harassment on the grounds of his religious beliefs.

Employment tribunal decision

The tribunal dismissed the doctor’s claims. It accepted that his Christianity was a religious belief protected under the Equality Act 2010 but his particular views on, and conscientious objection to, transgenderism were held to be views incompatible with human dignity and conflicted with the fundamental rights of others. These beliefs were therefore not protected religious or philosophical beliefs under the Equality Act 2010.

Consequences

The case is an interesting example of how tribunals will approach issues concerning the manifestation of a religious belief, in circumstances where that manifestation will potentially disadvantage those with a different protected characteristic, such as transgenderism.

The doctor is reportedly appealing the tribunal’s decision in the second case, so it will be interesting to see whether the same conclusion is reached by the Employment Appeal Tribunal.

This article is from the October 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at October 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.