419: Employment Tribunal rules against ethical veganism as a protected characteristic

In Owen v Willow Tower Opco 1 Ltd, an Employment Tribunal has ruled that a care home worker who was dismissed because she refused to be vaccinated against COVID-19 did not have a genuine philosophical belief in ethical veganism that qualified for protection under the Equality Act 2010.

The 2010 case of Grainger plc v Nicholson established that a belief will only qualify for protection under the Equality Act 2010 if it meets five main conditions:

• it is genuinely held;
• it is not simply an opinion or viewpoint;
• it concerns a weighty and substantial aspect of human life and behaviour;
• it has sufficient seriousness, cohesion, and importance; and
• it is worthy of respect in a democratic society.

This test was applied to ethical veganism in the 2018 case of Casamitjana Costa v The League Against Cruel Sports where the Employment Tribunal held that ethical veganism may in principle be a protected belief if it amounts to a philosophy and way of life that avoids, as far as possible, the use of animal products. In that case, Mr Costa was able to demonstrate that ethical veganism significantly dictated his daily life. For example, he did not consume foods that could have harmed animals in their production, such as figs which may contain wasp lava; did not allow non-vegan food in his home; did not wear clothes containing animal products; avoided bank notes as far as possible; and walked short distances rather than taking public transport to avoid accidental crashes with insects or birds.

Ms Owen worked in a residential care home which required all staff to be vaccinated against COVID-19. She refused the vaccine because she followed a strict vegan diet and the vaccine contained animal products. Ms Owen also had concerns about the efficacy of the vaccine and its potential unknown side effects. When the legal requirement for care home staff to be vaccinated came into force on 12 November 2021, Ms Owen was dismissed without notice as she did not have a valid exemption. She brought a claim for discrimination on the grounds of philosophical belief.

A preliminary hearing was held to decide whether Ms Owen’s beliefs were protected under the Equality Act. The Tribunal concluded that although ethical veganism may in principle be a protected belief, she did not hold her belief to the extent required by the Grainger guidelines or the threshold outlined in the Casamitjana case. Ms Owen followed a vegan diet and avoided leather and products that were tested on animals. She also took her own food to work and used gloves to handle non-vegan products. However, in the Tribunal’s view, Ms Owen had equated ethical veganism with a vegan diet, had failed to specify when she adopted a vegan lifestyle and had not provided sufficient details about how her life was structured around her belief beyond her dietary choices. She had also handled non-vegan products at work in a way that was inconsistent with ethical veganism.

Arguably the Tribunal applied too high a threshold, for example, by failing to take account of the practical realities of the workplace when noting that Ms Owen’s use of gloves when using non-vegan products was inconsistent with ethical veganism and by criticising Ms Owen for not clarifying whether she ate honey or figs. However the Tribunal did note that the documentation Ms Owen had submitted to the Tribunal lacked substantial references to her ethical veganism and was more focused on her health and safety concerns about the vaccine.

Employees bringing discrimination claims on the grounds of philosophical belief must ensure that they have sufficient evidence to satisfy a Tribunal that they hold a belief to the extent required by the Grainger guidelines, including details of how they modify their daily life to follow that belief. This case illustrates that following a vegan diet and avoiding some non-vegan products may not be enough to demonstrate a genuine belief in ethical veganism, although this may be subject to appeal.