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Case law: Belief that a person’s sex cannot change is not a ‘philosophical belief’, protected under discrimination law, but belief in ethical veganism can be

Employers will welcome clarification from the courts on what amounts to a protected ‘philosophical belief’. Treating an employee or job candidate less favourably because of their belief that a person’s sex cannot be changed is not discriminatory under employment law, but treating them unfavourably because they are ethical vegans can be.

February 2020

This update was published in Legal Alert - February 2020

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

In one case a consultant’s contract was not renewed after she tweeted, in a personal capacity, that it was not possible for a person to change sex. Her employer received complaints about her beliefs, saying she was transphobic.

She claimed the failure to renew her contract amounted to discrimination on grounds of philosophical belief. There is discrimination if an employee or potential employee is treated less favourably because of their philosophical beliefs compared to others who do not hold those beliefs.

The law says that, to qualify as a philosophical belief capable of protection under discrimination law, a belief must:

  • be genuinely held;
  • be more than an opinion (otherwise all political views would qualify for protection under discrimination law);
  • relate to a ‘weighty and substantial’ aspect of human life and behaviour;
  • have a level of cogency, seriousness, cohesion and importance;
  • be worthy of respect in democratic society; and
  • not be incompatible with human dignity.

The court found that she met many of these criteria, but failed on the final two.

It ruled that her belief was not worthy of respect in a democratic society because it meant she would refer to a transgender person as being of the sex she decided they were, even if that violated their dignity and/or created a hostile, degrading, humiliating or offensive environment for them.

It also ruled her belief incompatible with human dignity and the fundamental rights of others because it prevented someone with a Gender Recognition Certificate from exercising the right to be the sex they had transitioned to.

Her treatment was not therefore discriminatory on grounds of philosophical belief.

On the issue of freedom of speech, the court said that it is legitimate to exclude the right to freedom of speech in respect of beliefs which necessarily harm the rights of others.

In another case an employee of an animal protection charity held ethical vegan beliefs. This meant he not only ate nothing but vegan food but was against the use of animals for any purpose. He found out his employer’s pension fund was investing in businesses associated with testing products on animals, so he emailed colleagues to tell them this and how to take steps to change it. He was dismissed on grounds of gross misconduct.

He claimed he had been dismissed because of his whistleblowing, based on his ethical, vegan beliefs, so that his dismissal was discriminatory on grounds of philosophical belief.

An Employment Tribunal (ET) ruled that ethical veganism was ‘overwhelmingly’ a philosophical belief and therefore treating an employee holding such beliefs unfavourably could be discrimination.

However, the ET has not yet ruled on whether he actually was treated unfavourably. Note also that simply being a vegan may not amount to having a philosophical belief, so not all vegans will be protected from unfavourable treatment under discrimination law.

Operative date

  • Now

Recommendation

  • Employers can be confident that treating an employee or job candidate less favourably because of their belief that sex cannot be changed is not discriminatory under employment law. Employers may need to take steps to protect vegans – or some vegans – from unfavourable treatment or risk a discrimination claim.

Case ref: Forstater v CGD Europe & Ors [2019] UKET 2200909/2019
Casamitjana v the League Against Cruel Sports (judgment not yet delivered)

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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