The news has made waves around the world, but there is little chance the case would unfold the same way in Australia.
In a landmark UK legal case, a judge has stated that ethical veganism constitutes a philosophical belief and, therefore, should be protected from discrimination in the workplace — in a way similar to religion, sex and marital status.
The judge, Robin Postle, made the statement at a preliminary hearing at Norwich Employment Tribunal. In the case, Jordi Casamitjana, a London-based zoologist, alleged that his employer, the animal welfare charity League Against Cruel Sports (LACS), had discriminated against him on the basis of his belief in ethical veganism.
Casamitjana found out that LACS’ preferred pension fund for its employees invested in companies involved in animal testing. He alleges that, when he told his bosses about this discovery, they didn’t do anything. So he told his colleagues and so LACS sacked him.
LACS disputes this version of events, claiming the sacking was the result of Casamitjana’s gross misconduct – and had nothing to do with his ethical veganism.
The actual outcome of the case is yet to be decided and the judge’s description of ethical veganism as a ‘philosophical belief’ is not necessarily the point of law on which the case will be determined. Moreover, the statement does not set a precedent. It isn’t binding on future tribunals or cases because the judge made it at a first hearing, not as part of a final judgement.
But the case has made headlines around the world. Many lawyers and commentators in the UK argue it might well have ramifications for employers whose employees practise ethical veganism — and that litigators might draw on it, in future cases.
“This is a very significant judgment. Ethical vegans can be protected on the grounds of their belief,” Peter Daly, principal employment lawyer at Slater and Gordon, who represented Casamitjana, told The Australian.
“Employers will have to respect ethical veganism and make sure they do not discriminate against employees for their beliefs,” Clive Coleman, the BBC’s legal correspondent, writes. “So, for example, could a worker on a supermarket checkout refuse to put a meat product through the till?”
Australia is different
Postle’s description of ethical veganism as a ‘philosophical belief’ potentially brings it under the UK’s Equality Act 2010, which makes it unlawful for employers to discriminate against employees on the basis of “religion or belief”.
‘Belief’ is defined according to several characteristics, including being “cogent, serious and applying to an important aspect of human life or behaviour”, according to the UK Equality and Human Rights Commission.
In Australia, it’s a different story. While religious beliefs receive legal protection, non-religious beliefs do not necessarily, says Australian lawyer Aaron Goonrey, partner, workplace relations and safety, Lander and Rogers. (Would an employee have protection from dismissal if it was over a political belief in veganism? It’s complicated.)
Various discrimination acts at the federal level, the Fair Work Act 2009, and discrimination and equal opportunity acts at state level make it unlawful for employers to discriminate on the basis of religious or political belief, activity or affiliation — depending on the act. In addition, Section 116 of the Australian Constitution states our right to the freedom of religion. However, ‘philosophical beliefs’ don’t get a mention.
“When you look at case law, the High Court has defined ‘religion’ according to two criteria,” says Goonrey. “First, there must be a belief in a supernatural being, thing or principle. Second, there must be accepted cannons of conduct.
“As far as I’m aware, veganism doesn’t fit this criteria. So, you wouldn’t necessarily find protection in the legislation — unless you could argue you were a vegan because of your religion; for instance, if you were to argue that your religion states you must treat all animals equally.”
The limits of protection
Goonrey also points out the complexities of defining beliefs. “When people use the term discrimination, they often think of it in a negative way. But the reality is that people are discerning and, therefore, they discriminate.
“For example, I’ve been hearing more and more about employers discriminating on the basis of a prospective employee’s suburb, usually because they live a long way from the workplace, and the employer worries about the practicality of that person getting to and from that work. Many people might think that’s unfair, but would they think it should be grounds for unlawful discrimination?”
It’s important to understand the laws that underpin HR. This one day course will get you up to speed.
Back on the topic of religious beliefs in Australia, the Noosa Temple of Satan made a submission on the Government’s proposed Religious Discrimination Bill, pledging to take advantage of its many freedoms — from “access to street evangelism” to “school touring bands programs”.
If veganism cannot be protected as a religious belief or as a ‘belief’ are there any other legal protections available? There is an implied freedom of political and government communication under the Constitution. However, this freedom operates to generally restrict the powers of government and is not in itself a personal right granted to individuals. It’s therefore unlikely that veganism would be protected under this implied freedom either.
Could an Australian Bill of Rights solve the problem?
Australia is the only Western democracy without a Bill of Rights, which is a list of the fundamental rights of a nation’s citizens. Instead, laws protecting our rights are scattered across various bodies of legislation.
“Some legal experts argue that a Bill of Rights would make this area of law much easier,” says Goonrey. “But what wouldn’t be easy is for our legislators to agree on it — they have different views on those freedoms and how they should be expressed.”