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Any new cases to be aware of?
You may have read in the news that, on Friday 3 January 2020, an employment tribunal ruled that ethical veganism is a philosophical belief that is protected against discrimination under the Equality Act 2010.
The case was brought by Jordi Casamitjana against his former employer, the League Against Cruel Sports (LACS). Mr Casamitjana alleges that he was dismissed from his employment by the LACS due to his ethical veganism. The LACS deny this, arguing that he has been dismissed on conduct grounds. The preliminary hearing held on 3 January purely focused on whether Mr Casamitjana’s ethical veganism was a belief capable of protection under the Equality Act 2010 and therefore something that could be discriminated against. It was not a determination as to whether he had been unfairly dismissed.
A philosophical belief is one of the nine protected characteristics under the Equality Act that employers must not discriminate against. In order for ethical veganism (or any other belief, for that matter) to fall within the definition of “philosophical belief”, it must satisfy several tests. These include being worthy of respect in a democratic society, not being incompatible with human dignity and not conflicting with the rights of others.
This point was uncontested by the LACS and therefore it’s not particularly surprising that the tribunal ruled in the way it did. Mr Casamitjana’s case now continues, with the question turning to whether he was dismissed because of his ethical veganism or for conduct reasons.
Whilst this hearing didn’t determine the outcome of a case, it‘s important in that it establishes that the belief in question is now capable of protection. Employees and trade unions will likely be pleased as the outcome offers greater protections for workers. However, employers will be concerned that this could open the floodgates for all sorts of beliefs to receive such protection in the workplace.
Mr Sethi was a practising Sikh, who adhered strictly to Kesh – the religious requirement that body hair must not be cut. Consequently, Mr Sethi had never cut his beard.
In search of employment, Mr Sethi approached Elements Personnel Services Ltd, a specialist work agency which provides staff for the hospitality industry, mainly for 5-star hotels. Mr Sethi was placed on the agency’s books, which gave him access to a portal so that he could put himself forward for specific jobs.
The agency had a ‘no beards’ policy, concerned with appearance (not hygiene). Mr Sethi told the agency that he wouldn’t be able to shave his beard for religious reasons. The agency responded, explaining that “… I know it’s part of your religion, and we have tried to accommodate to allow you to get started with us but unfortunately no facial hair is a part of the 5* standards…”.
Mr Sethi brought an Employment Tribunal claim against the agency for indirect discrimination, arguing that its ‘no beards’ policy was a provision, criterion, or practice (“PCP”) which was discriminatory in relation to the protected characteristic of his religion.
The Employment Tribunal found that the ‘no beards’ requirement of the agency’s dress code policy is a PCP in accordance with the statutory definition. The policy applied to all agency workers. It placed Sikhs generally, and Mr Sethi himself, at a particular disadvantage “because it is a fundamental tenet of the Sikh faith…for a male to have an uncut beard and therefore we accept that a significantly greater proportion of Sikhs will not be able to comply with the PCP than will persons who [are not Sikh].”
The Tribunal went on to consider whether the PCP was justified by a legitimate aim. It accepted that, in general terms, it was a legitimate aim for the agency to seek to comply with client requirements. The agency had produced evidence to show that clients are generally very strict about dress and appearance and likely to complain about and/or refuse to accept workers who do not meet their requirements. The Tribunal also found, in general terms, a rational connection between the agency’s ‘no beards’ policy and the legitimate aim of complying with client requirements.
However, the Tribunal was not satisfied that the aim of complying with clients’ requirements justifies having a ‘no beards’ policy that applies to everyone, with no exceptions for those who cannot shave for religious reasons. Not all of the agency’s clients had a ‘no beards’ requirement, and there was no evidence that the agency had ever asked a client whether they would make an exception for a Sikh, or identified client requirements for a Sikh worker. Just because clients complain about breaches of the dress/appearance code generally, it did not mean that they would decline to make an exception for a Sikh.
The Tribunal considered that the legitimate aim of meeting client requirements could have been met on a case-by-case basis. Applying this principle, the agency could have taken Mr Sethi onto the books and addressed his requirements in relation to each client thereafter by seeking exceptions for Sikhs, together with an explanation that they are unable to shave for religious reasons.
Mr Sethi was successful in his indirect discrimination claim. The agency could not rely on its clients’ requirements to enforce a blanket ‘no beards’ policy with the effect of depriving Sikhs of work.