UK: recent cases test the boundaries of protection for philosophical beliefs

A number of recent cases have grappled with the question of what amounts to a protected philosophical belief for the purposes of discrimination law, reflecting a growing trend of claimants seeking to push the boundaries (in some cases because of a lack of eligibility to claim unfair dismissal).

In Gray v Mulberry Company (Design), a claimant alleged that her dismissal for refusing to sign a copyright assignment agreement was discrimination on the grounds of an alleged protected belief that "the statutory human or moral right to own the copyright and moral rights of her own creative works and output, except when that creative work or output is produced on behalf of an employer". The tribunal and EAT found that the asserted belief was not sufficiently cohesive to form any cogent philosophical belief system.  The Court of Appeal dismissed the appeal on different grounds: that on the facts there was no causal connection between the alleged belief and the dismissal, given that the claimant's refusal to sign was due to a dispute about the wording of the agreement assigning rights in relation to creations in the course of employment.

In Mackereth v DWP a tribunal ruled that a doctor's "lack of belief in transgenderism, and conscientious objection to transgenderism", causing him to refuse to address patients by their chosen pronoun, were "incompatible with human dignity and conflict with the fundamental rights of others" and therefore were not protected beliefs, albeit that they stemmed from the individual's Christianity. Perhaps more convincingly the tribunal went on to hold that, if the beliefs were protected, the requirement to use a patient's chosen pronoun was justified as a proportionate means of achieving a legitimate aim (not causing patients offence), given the impossibility of  offering the doctor alternative duties.  His dismissal was therefore not unlawful; Dr Mackereth has stated that he intends to appeal.

In Conisbee v Crossley Farms Limited a first instance tribunal has ruled that vegetarianism was not protected on the slightly surprising grounds that it did not concern a weighty and substantial aspect of human life and behaviour (but rather was a lifestyle choice relating to animal lives).  The tribunal also ruled that the belief was insufficiently cogent and cohesive given the variety of reasons different individuals can have for being vegetarian (although the cogency test is normally understood as asking if the specific individual's belief can be clearly understood and is manifested consistently).  The tribunal did seem to think (obiter) that veganism was more likely to be protected.  A tribunal claim that ethical veganism is a protected belief is due to be heard in January 2020 (Casamitjana v League Against Cruel Sports).

Given the unpredictability of tribunal decisions in this area, it is obviously prudent for employers to err on the side of caution.  Employers should ensure that beliefs relating to diet are catered for when providing food at work functions, and to deal appropriately with any 'office banter' or jokes about such beliefs.