THE ARGUMENTS FOR THE CLAIMANT

On the vegetarianism point, the first submission on behalf of Mr Conisbee was summarised by the tribunal as follows:

The first sentence is ambiguous. The issue of whether vegetarianism is a protected characteristic was precisely what the case was about and would determine whether or not the claimant had a claim for discrimination. The second sentence is non-controversial but does not follow from the first. It is settled law that harassment merely needs to ‘relate’ to a protected characteristic and it is also settled law that the victim does not have to possess the protected characteristic in order to succeed.Footnote ⁷ This would be relevant if the claimant was alleging discrimination on grounds of sexual orientation but it is difficult to see its relevance in relation to alleged religion or belief discrimination because the claimant was indeed a vegetarian. The examples given in the Explanatory Notes of the Equality Act, paragraph 99 make it clear that unwanted conduct which is related to a protected characteristic constitutes harassment where it creates an intimidating environment for those who do not share that protected characteristic.Footnote ⁸ Again, the relevance of this to this case is questionable. The definition of harassment under section 26 of the Act makes it plain that for harassment to have taken place there must be ‘conduct related to a relevant protected characteristic’. For harassment on grounds of religion or belief, therefore, a finding that vegetarianism is incapable of constituting a philosophical belief will defeat the claim. The same is true for a claim of discrimination: there needs to be a protected characteristic.

The arguments on behalf of the claimant continued with the assertion that the Explanatory Notes to the 2010 Act made it clear that a definition of philosophical belief under the Act was a broad one in line with the rights granted under the European Convention on Human Rights (ECHR); and paragraph 52 of the Notes clarified what amounted to a protected characteristic under the category of philosophical beliefs as having the following criteria:

These statements of law are correct, though the quasi-legal authority bestowed upon the explanatory notes is troubling, especially since neither the explanatory notes nor the tribunal noted that these four tests actually originated in the Employment Appeal Tribunal's judgment in Grainger.Footnote ¹⁰

Counsel for the claimant argued that vegetarianism was clearly a weighty and substantial aspect of human life and behaviour, for several reasons. Many vegetarians – including the claimant – were genuine in their belief and there was no sensible argument to suggest that the belief system behind vegetarianism was made up or fanciful. Equally, no-one could sensibly deny that many vegetarians based their genuine belief on the premise that it was wrong and immoral to eat animals and to subject them and the environment to cruelty and perils of farming and slaughter; and that that was not a mere opinion or viewpoint based on the present state of information available but a serious belief integral to their way of life. Finally, a fifth of the world's population was vegetarian. The belief therefore attained a high level of cogency, seriousness and importance and was certainly worthy of respect in a democratic society – and no-one could sensibly argue that it was incompatible with human dignity or conflicted with other fundamental rights.Footnote ¹¹

Three cases were cited in support of that contention:Footnote ¹²

1. i. Williamson,Footnote ¹³ in which the issue was whether or not Christian parents could delegate their right to inflict corporal punishment on their children to their children's teachers – in particular, Lord Walker of Gestingthorpe's statement at paragraph 55 that ‘Pacifism and vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs which fall within Article 9’;

2. ii. Grainger, in which a belief in human-made climate change was held to be capable of qualifying as a philosophical belief; and

3. iii. Redfearn,Footnote ¹⁴ in which the European Court of Human Rights held that the UK was obliged to provide for the protection of political beliefs – in Mr Redfearn's case, his dismissal after being elected as a Bradford City Councillor for the British National Party – regardless of how shocking or disturbing those beliefs might be.

Although counsel for the claimant was correct to assert, citing Eweida v UK,Footnote ¹⁵ that employment tribunals have drawn on jurisprudence from the European Court of Human Rights on the issue,Footnote ¹⁶ the assertion that ‘the definition of S.4 characteristics is aligned with the rights guaranteed under the ECHR’ is not quite right. While the Equality Act 2010 defines ‘belief’ as ‘any religious or philosophical belief’ or lack of such belief and therefore requires non-religious beliefs to be philosophical, by contrast, Article 9 of the ECHR does not distinguish between philosophical and non-philosophical beliefs. Moreover, it is now unclear as to when political beliefs are protected under discrimination law.Footnote ¹⁷ In Kelly v Unison it was suggested that a distinction could be drawn between ‘political beliefs which involve the objective of the creation of a legally binding structure by power or government regulating others’, which are not protected, and beliefs that ‘are expressed by his own practice but where he has no ambition to impose his scheme on others’, which may be protected.Footnote ¹⁸ Possibly to confuse matters even further, an employment tribunal held recently in McEleny Footnote ¹⁹ that the claimant's belief in Scottish independence amounted to a philosophical belief within the meaning of section 10(2) of the Equality Act 2010 and could be relied upon as a protected characteristic for the purposes of claiming direct discrimination under section 13.

THE ARGUMENTS FOR THE RESPONDENTS

On behalf of the respondents, counsel proceeded to elucidate the legal definition of a philosophical belief and here expressed it as requiring nine tests. They were as follows:

The first four tests are as laid out in Grainger, while the remainder seek to distil sentiments expressed in the case law – but the extent to which some of these have become firm requirements may be questioned.

The most objectionable test is (f). It is true that the Strasbourg case law on Article 9 and various domestic courts and tribunals have said that a belief needs to be cogent.Footnote ²¹ Indeed, in this respect (f) repeats (d). However, there is no legal requirement that a philosophical belief must have a ‘similar status’ to a religious belief.Footnote ²² For the purpose of discrimination law, the requirement that philosophical beliefs must be similar to religious ones has been removed: it had been included in the Employment Equality (Religion or Belief) Regulations 2003 but was removed by the Equality Act 2006. The only evidence to the contrary can be found in a House of Lords debate in which the then Minister of State for Home Affairs, Baroness Scotland of Asthal, said that

Counsel for the Respondents contended that the claim that vegetarianism is a belief ‘fails on one or some of all of b, c, d and f above’.Footnote ²⁴ In respect of (b), it was argued that Mr Conisbee's assertions in his witness statement that it was his belief that ‘animals should not be bred, caged or killed for the purposes of food’ and that ‘I happen to believe that the environment would be a better place without slaughtering animals for food’ were merely an opinion or viewpoint.Footnote ²⁵McClintock Footnote ²⁶ was quoted as holding that, where a Justice of the Peace objected to adoption by same-sex couples but ‘had not as a matter of principle, rejected the possibility that such adoptions could ever be in a child's best interest’, then that amounted to an opinion rather than a belief. However, the facts in McClintock seem distinguishable from the witness statement; as quoted, it does not support the contention that Mr Conisbee's convictions on vegetarianism were not principled, nor was there any evidence that he had even hinted that his mind was not completely made up and that he had conceded that there was a rationale for eating meat.

In respect of (c), counsel argued that vegetarianism failed the ‘weighty and substantial aspect of human life’ test because it was not about human life and behaviour but about preserving the life of animals and fish.Footnote ²⁷ This also seems to miss the point. Both religious and philosophical beliefs can be about things other than human life. This requirement relates not to the content of a belief but to the importance of the conviction to humans. A belief about the environment, nature or animals should not fail the test simply because the content of the belief does not directly concern humans. That would be absurd. Indeed, vegetarianism does concern humans: it is the conviction that humans should not eat meat. The recent report of the Intergovernmental Panel on Climate Change stated that ‘Livestock on managed pastures and rangelands accounted for more than one-half of total anthropogenic N₂O emissions from agriculture in 2014’ and that:

In respect of (d), counsel contended that it also failed the test of cogency, seriousness and importance. Here a distinction was drawn between vegetarianism and veganism. Counsel submitted that while

Counsel for the respondents had recited the Oxford English Dictionary definition of a vegetarian as ‘a person who does not eat meat or fish and sometimes other animal products especially for moral, religious or health reasons’, contrasting this with a vegan, a ‘person who does not eat or use animal products’.Footnote ³⁰ This led counsel to summarise the difference like this: ‘vegetarianism is genuinely accepted to be the practice of not eating meat or fish’ while ‘veganism is a practice of abstaining from both the consumption of and use of animal products’.Footnote ³¹ Although such a distinction can be made, it is questionable whether there is a need to distinguish the two in defining vegetarianism.Footnote ³² Moreover, it can be questioned whether this distinction means that veganism meets the test, but vegetarianism does not. It is difficult, though not impossible, to see why it might be thought intellectually inconsistent to be against the slaughter of animals for food but to drink milk and eat butter. The objection of vegetarians is, surely, to raising animals specifically for slaughter, and dairy cattle are raised for milk, not for meat; but, as every listener to The Archers knows, regular calving is necessary for continued annual lactation and most of the bull calves from a dairy herd go to the abattoir.

This reasoning also applied to (f), in which counsel arguing that vegetarianism was ‘some way removed from veganism’ and was a far less serious belief – and therefore fell short of attaining the level of cogency or seriousness similar to a religious belief.Footnote ³³

Finally, counsel argued that Parliament had not intended that vegetarianism should be a protected characteristic. In spite of the opinion of the Equalities and Human Rights Commission to the contrary, the Government Equality Office had issued a statement to the effect that the Government did not share the view that climate change or veganism were religious beliefs, while conceding that interpretation was a matter for the courts;Footnote ³⁴ further, Baroness Warsi had said in the House of Lords that ‘To include cults and other lifestyle choices such as vegetarianism and veganism is to make something of a farce of the debates that we had.’Footnote ³⁵ It is worth comparing this with Lord Walker's remarks in Williamson that vegetarianism was an uncontroversial example of a belief that attracted the protection of Article 9 ECHRFootnote ³⁶ – though, admittedly, his comment was obiter and not central to the issue before the court: the right or otherwise of parents to give permission for teachers to beat their children for misbehaviour. We would contend that neither the asides of Lord Nicholls nor the views of Baroness Warsi quoted above are definitive in dealing with this issue.

THE TRIBUNAL'S CONCLUSIONS

In deciding that vegetarianism was not ‘capable of satisfying the requirement and definition of being a philosophical belief under the Equality Act 2010’, the employment tribunal applied the four tests provided by counsel for the claimant as outlined in paragraph 52 of the Explanatory Notes to the Equality Act (and as originally laid out in Grainger). However, the tribunal also applied test (f) as put forward by the respondents.

It was accepted that Mr Conisbee was a vegetarian and that he had a genuine belief in his vegetarianism.Footnote ³⁷ However, the tribunal considered that his ‘viewpoint that the world would be a better place if animals were not killed for food … does not seem to be a belief capable of protection’. Employment Judge Postle stated that ‘it is simply not enough to have an opinion based on some real, or perceived, logic’. It is unclear what was meant by this. As discussed above, Mr Conisbee seems to be in a different position from that of Mr McClintock in the case which distinguished opinions from beliefs. There is no suggestion here that Mr Conisbee was continuing to weigh up the evidence. Rather, Employment Judge Postle seems to be questioning and critiquing the logic of Mr Conisbee's conviction and deeming it not worthy of protection.

That is improper. It has long been established that, while courts may be concerned with whether or not the claim of religious belief was made in good faith, they are not concerned whether the religious belief professed is ‘good’ or ‘bad’ in terms of judging its validity.Footnote ³⁸ As Lady Hale put it in Williamson, it is not the role of the court

Employment Judge Postle then found that the requirement that a belief must be a weighty and substantial aspect of human life and behaviour was not met:

As discussed above, the respondent's argument that this test was not met because the belief related to animals rather than to humans is nonsensical. The articulation here of Mr Conisbee's conviction as ‘believing the world would be a better place if …’ seems to go beyond being an ‘admirable sentiment’ and is, rather, the type of expression one would find in most beliefs. It very much sounds like a ‘world-view’: the very thing that courts have used as a synonym for a belief.

The tribunal concluded that the requirement that the belief had a certain level of cogency, seriousness, cohesion and importance was similarly not met, even though it was worthy of respect in a democratic society:

This seems uncritically to adopt the respondent's questionable distinction between veganism (which, it was argued, does meet this requirement) and vegetarianism (which, by contrast, it was argued does not). The tribunal's contrast between the ‘clear cogency and cohesion in vegan belief’ and the ‘numerous, differing and wide varying reasons for adopting vegetarianism’ are far from conclusive. Peter Edge suggests that Postle's ‘monolithic view of veganism is odd’ and points out that, in reality, people hold vegan beliefs for a variety of reasons:

The same could be said of other philosophical beliefs. Very few would suggest that Marxism as expounded in Das Kapital, for example, does not ‘attain a certain level of cogency, seriousness, cohesion and importance’ and many Marxists hold their views tenaciously. However, they also have a history of disagreeing among themselves about exactly what their philosophy is about and what it entails in policy terms. The same can also be said for Conservatism in its British manifestation: as to its current internal disagreements, lector, si monumentum requiris, circumspice.Footnote ⁴³ Or compare and contrast Christianity as espoused by the Orthodox Church with Christianity as taught by the Strict and Particular Baptists.

Furthermore, ‘seriousness’ is at least to some extent in the eye of the beholder. When the Supreme Court held in Hodkin Footnote ⁴⁴ that Scientology was a religion for the purposes of registering its chapels as places of worship under section 2 of the Places of Worship Registration Act 1855, it was surely correct to do so. To most non-Scientologists, however, its core doctrines do not appear to be ‘serious’ at all.

Finally, while the previous reasons given by the tribunal are questionable interpretations and applications of the law, the issue with the final test applied is whether it is a legal requirement at all. The tribunal found that

As discussed above, it is questionable whether a philosophical belief must be similar to a religious one in order to be protected. Even ignoring this, the second sentence seems confused. Here Employment Judge Postle seems to be conceding that vegetarianism does relate to an important aspect of human life. This contradicts his findings in relation to weightiness. Moreover, one might reasonably ask this: if a belief about an important aspect of human life is not sufficiently similar to a religious belief in terms of status or cogency to attract protection, what non-religious belief could possibly satisfy that requirement?