There have been two recent high-profile Employment Tribunal cases that have dealt with the issue of what is a “Philosophical Belief” under the Equality Act, which would entitle the individual to the protection against discrimination.
In the first case, Forstater v CGD Europe, Ms Forstater lost her argument that her Gender Critical Beliefs were a Philosophical Belief.
In the second, Casamitjana v League Against Cruel Sports, Mr Casamitjana won his argument that Ethical Veganism was a Philosophical Belief.
At the outset, it’s worth making the following points, especially as they have been frequently misrepresented in media reports
- An Employment Tribunal decision does not set any kind of legal precedent. It applies only to the specific case in question. However, both cases do illustrate the approach a tribunal is likely to take to any dispute, so it’s worth employers understanding how the decision has been reached.
- The fact that something is a Philosophical Belief does not mean it is the ‘same’ as a religion – simply that the law protects those who have deeply held values in the same way as it protects people with religious beliefs.
What both tribunals asked was whether the belief in question met the 5 tests set down by the Courts. These are:
- It must be genuinely held
- It must be a belief, not an opinion based on currently available information
- It must be a belief as to a weighty and substantial aspect of human life and behaviour
- It must have attained a level of cogency, seriousness and cohesion
- It must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others
Forstater lost her case on the final point – her views were seen to be in conflict with the fundamental rights of a group of other people (transgender individuals). (It’s almost certain that this case will go to appeal, so we may have a series of rulings on this particular issue over next few years). (Update – this decision was subsequently overruled in the Employment Appeal Tribunal – see this blog post )
There have been a lot of over-excited comments about this whole topic, including some from HR people who ought to know better. So to clarify
- Support for a particular football team is not a philosophical belief
- The decisions do not mean that ‘women are treated as being below animals’
- People are not protected because of the food they eat (or don’t eat)
- There are no onerous new “restrictions” placed on employers.
For a small business, there are three key ‘take-aways’ from these cases
- These are issues that people have strong views about. But in the same way that saying you don’t believe the speed limit should be 30mph is no defence against speeding, your personal views of the issue are irrelevant to what the law says
- There is no ‘hierarchy of equalities’ – the fact you have one protected characteristic doesn’t justify discriminatory behaviour against a different protected characteristic
- Make your employment decisions – be they recruitment, promotion, dismissal etc – for clear business reasons, not because of someone’s personal characteristics.