Religion and belief is one of the more complex of the protected characteristics, since the beliefs it seeks to protect range from long-standing religious beliefs to emerging secular beliefs that don’t necessarily have the same weight of history and learning behind them.
Thankfully, since 2010 we have had detailed guidance from the Employment Appeal Tribunal about how to approach the question of whether a particular belief should be protected, in a decision which ruled that belief in the moral duty to act to mitigate the catastrophe of climate change was a protected belief. In the past year we have seen a number of interesting employment tribunal decisions applying this test to different kinds of belief, though these decisions may be appealed and are not binding on other employment tribunals.
In September 2019 we had a decision from the Norwich employment tribunal which concluded that Mr Conisbee’s beliefs in vegetarianism were not protected, mainly because they were not sufficiently coherent. On the other hand, in a decision that was announced right at the beginning of 2020, an employment judge from the same Norwich tribunal concluded that Mr Casamitjana’s vegan beliefs did qualify for protection.
Turning to the sensitive area of transgender rights, we have had two decisions from the employment tribunal which ruled that beliefs that gender was immutably assigned at birth were not protected. Both claimants, one for secular reasons and the other for religious reasons, had refused to recognise the possibility of gender-reassignment and had declined to commit to address trans people with their preferred pronoun. In both cases the employment judge ruled that these beliefs were not worthy of respect in a democratic society and so did not qualify for protection under the Equality Act.
It is worth emphasising that all four decisions were at preliminary hearings, so the full facts have not been explored. However, other cases have demonstrated that it is often difficult for the claimant to establish a causal link between the protected belief and the detriment they claim to have suffered. That is particularly so where the beliefs in question have not been subject to a history of prejudice.
On the other hand they remind employers to be alert to the variety of beliefs that may qualify for protection. They should be aware that in matters of conscience, the right to hold these beliefs is normally unqualified, but it may be lawful to impose restrictions on the way they are manifested, provided that these are a proportionate means of achieving a legitimate aim.