UK Employment Law Coffee Break | Ageing workforces, ethical veganism and protected beliefs, and workplace adjustments

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When does an alleged belief in ethical veganism amount to a protected philosophical belief?

An Employment Tribunal has recently considered whether an alleged belief in ethical veganism was sufficient to amount to a protected belief under the Equality Act 2010, and therefore attract protection from discrimination. The claimant worked as bank staff in a care home and raised a grievance following a decision that all staff should be vaccinated against Covid-19.

The claimant followed a vegan diet and believed she was exempt from the vaccine, but also had concerns about the possible side-effects of the vaccine and its efficacy. The grievance was not upheld and the claimant was dismissed; she subsequently brought claims for unfair dismissal and religion or belief discrimination. On the latter, the Employment Tribunal found that the claimant's alleged belief in ethical veganism was not a protected belief under the Equality Act 2010 in these particular circumstances.

Does ethical veganism meet the criteria for a protected philosophical belief?

In determining whether a belief amounts to a philosophical belief the leading case remains Grainger plc & ors v Nicholson. It provides the now well-established guidance (subsequently replicated by the Equality and Human Rights Commission's code of practice) that a belief only qualifies for protection if it:

• is genuinely held;
• is not simply an opinion or view point based on the present state of information available;
• concerns a weighty and substantial aspect of human life and behaviour;
• attains a certain level of cogency, seriousness, cohesion and importance; and
• is worthy or respect in a democratic society.

Ethical veganism is a protected philosophical belief under the Equality Act 2010 (unlike vegetarianism, which has previously been found not to amount to a philosophical belief), as it is not just about choices of diet, but about choices relating to what a person wears, what personal care they use, their hobbies and the jobs they do: "they are in fact people who have chosen to live, as far as possible, without the use of animal products".

Did the claimant genuinely hold a belief in ethical veganism?

In the particular circumstances, the Employment Tribunal (ET) found that there was a "paucity of evidence" on which to find the claimant genuinely held a belief in ethical veganism. While she followed a vegan diet and avoided using some products that were not vegan, the following reasons were key to the ET finding that her beliefs were insufficient to qualify for the protection of the Act (and therefore to protect her from the detriment of her dismissal):

• She was unable to confirm when she started having a belief in ethical veganism.
• She repeatedly said that she followed a vegan diet and to her that was the same thing as ethical veganism.
• She was unable, or failed to, say anything about how her life was modified/structured to follow her belief other than her diet and some products (and she had produced no evidence in respect of the products).
• She accepted that she did use products in the respondent’s employment that were not vegan, but that she would use gloves.
• She gave no examples of ways in which her daily life was structured to adhere to her belief.
• The most significant reference to veganism was to her diet, which does not go far enough to establish a belief in ethical veganism. She did not explain how she went about ensuring she was following a vegan diet, how she checked her products, what she did if she was around someone else who did not eat vegan food, for example.
• The claimant's main criticisms of the vaccine appeared not to be connected to veganism, but to the fact it was, in her view, experimental and may contravene health and safety legislation.

Challenges for employers

Employers are increasingly dealing with challenges related to employees' philosophical beliefs, which may conflict with an aspect of their duties or an instruction in the course of their employment.

A broad range of beliefs can be afforded the protection of the Equality Act. Ethical veganism, a belief that lying is always wrong, a belief in anti-fox hunting and a belief in the higher purpose of public service broadcasting have all been found to be beliefs capable of protection. This case does, however, helpfully clarify that an assertion of a belief will be carefully scrutinised against the established criteria to ensure that it is both genuinely held and that it meets the further requirements set out above.

An employer faced with a challenge from an employee based on a philosophical belief should always explore their concerns with an open mind and with a view to working out a way of accommodating those beliefs wherever possible.

In situations where there is concern that a belief is not genuinely held or may not meet the other requirements for protection under the Equality Act, careful consideration of the particular belief against the established Grainger criteria will help an employer to establish whether the belief is a protected one. Where this is the case, the next step is to consider whether the way in which the belief is being manifested is reasonable.

Workplace adjustments: survey calls for greater understanding of a disabled individual's 'whole-life experience'

The Business Disability Forum has reported on the results of its Great Big Workplace Adjustments Survey for 2022/23. Under the Equality Act 2010, employers are under a legal duty to make "reasonable adjustments" to remove or reduce a disadvantage related to an individual's disability. Common examples include making changes to the workplace, changing working arrangements, finding a different way to do something and providing equipment, services or support.

The results indicate that while there has been progress since the last survey – the knowledge, skills and understanding of managers has improved with many feeling more comfortable having conversations about adjustments with disabled employees and managing remote work environments – there is still more that employers could be doing to support disabled employees.

Only 10% of disabled employees indicated that it was easy to get the adjustments they needed and one in eight are waiting over a year to get the adjustments they need. A difficulty identified was in often "complicated and multiple" ways in accessing an internal adjustments process, that could be confusing and take time and energy to understand, and the need for better compatibility between the internal process and occupational health.

However, the survey sets out important broader considerations for employers when working with disabled employees on making the workplace accessible.

Differing perspectives

Managers and wider support teams may see adjustments as a process to be fulfilled and fail to recognise that the experience of a disability or condition in work and outside of work impact on one another. There can be difficult conversations and tensions in employee and manager relationship when adjustments need to change or "first choice" of adjustments cannot be fulfilled; the report notes that from the employee's perspective they can feel like they are being let down, while from a manager's perspective they are properly following workplace decision-making processes. This distance between employees and managers "needs the greatest attention".

Cultural barriers

While managers are "generally equipped" to make adjustments to a job, they often do not have the scope of authority to make adjustments to the culture and wider physical and non-physical working environments and social relationships existing at all levels of an organisations.

Wider cultural barriers related to bullying and harassment, general workplace culture and social interactions and behaviours all need addressing. The report states that 38% of disabled employees reported being bullied or harassed in their workplace because of their disability or condition and 40% said they felt patronised or put down. Remarks included being told that they were only recruited because they "ticked the disability box" or that they were on the "spectrum".

A complicated, clinical and lengthy process of getting adjustments and support could also feel like harassment. Even where employees did not feel that they could definitively say they had been bullied or harassed, some said the general environment for them as a disabled employee in their organisation felt "hostile" or "uncomfortable".

Mental wellbeing

Only 5% of disabled employees said their mental wellbeing is generally very good. There is a need to recognise that managing a disability and condition all of the time adds an additional type of stress and pressure, amplifying feelings of poor mental wellbeing.

A failure to have the adjustments they need can leave disabled employees feeling "vulnerable", where they cannot as a consequence perform their job to the quality that they are skilled to do. Stressors identified in the report include: workload, unclear communication and decisions, senior leaders leaving non-inclusive behaviours unchallenged, and anxieties unaddressed by lack of transparency and supportive communication during times of change.

The survey found that health and wellbeing initiatives at work are "often inaccessible and not inclusive" to disabled employees. In addition, signs on lifts telling employees to use the stairs instead, promotion of mindfulness techniques and diet-related advice were all examples of initiatives that had not considered that people's bodies are different and that these activities may feel insensitive, or in the case of mental health related advice and apps, even triggering for some. Although disabled employees said they did not feel their employer was intentionally excluding them, it did however cause them to feel "left out".

Importance of whole-life experience

It can be difficult for busy managers to look beyond an internal process to meet the needs of a disabled employee in their team, but the report highlights a real need for there to be a better understanding by managers of the whole-life experience of having a disability or condition.

The report notes that "even the most inclusive and accessible of teams and workplaces could not remove the wider impact of a disability or condition itself; for example, no amount of adjustments or inclusive culture-shifting could take away side effects of medication, discomfort that comes from physical conditions or where chronic fatigue or chronic pain persist daily whether at work or home… a lack of adjustments in the workplace does not just affect the employee in working hours but impacts on their whole day, their whole body and 'whole life' experience".

It highlights the impact on disabled employees of existing barriers that remain even after adjustments have been made and the general culture of disability inclusion in the workplace; "having adjustments and removing barriers underpins and exists within every single experience of the workplace".

Accompanying the survey is a separate list for recommendations to help employers see all of the actions they can consider as a result of the survey's findings. It is often more easy to determine adjustments that can benefit employees with physical disabilities, but mental health challenges that either accompany a physical disability or stand alone are sometimes more difficult to address. While there has been much positive progress in public awareness of mental health and many may be more willing to share their challenges with their employer, managers will still need training and guidance to understand how to support their team properly and how to discuss and explore sensitively possible workplace solutions.