Legal Matters: Miranda Hughes
The field of employment law can be a veritable minefield, especially for employers, and it can be all too easy to be caught out by the rules and regulations, in many cases unintentionally.
From Health and Safety, to gender pay gaps, the level of knowledge required by an organisation, whether they employ one person or one thousand, is considerable.
Among the most recent issues to reach the attention of the public is that of philosophical belief.
Some recent cases have made headlines on what may or may not be considered a ‘philosophical belief’. The decisions in these cases may well come as a surprise to many employers.
Earlier this month, the Norwich Employment Tribunal found that ethical veganism is a philosophical belief. However, at the end of last year, Judges in a London Employment Tribunal held that a researcher’s views on transgender women that she had shared in tweets were not a philosophical belief. The latter case even prompted a reaction on Twitter from JK Rowling who wrote in support of the researcher who had lost her job over the social media posts.
So what is a philosophical belief and why do these cases matter, particularly if you are an employer?
Under the Equality Act 2010, one of the protected characteristics is Religion or Belief.
In the workplace, this means that individuals have the right not to be discriminated against or harassed on these grounds. The definition of Belief is fairly clear – it means any religious or philosophical belief.
In order for a belief to constitute a philosophical belief, an Employment Tribunal must establish a number of things.
Firstly, that it is genuinely held. Secondly that it is not just an opinion or viewpoint based on the present state of information available. Thirdly, that it is about a weighty and substantial aspect of human life and behaviour.
Furthermore, it must have a certain level of cogency, seriousness, cohesion and importance. Finally, the belief must be worthy of respect in a democratic society and is not incompatible with human dignity or conflicting with other fundamental rights of others.
The judge in the veganism case said that the claimant’s views on ethical veganism were important and worthy of respect. Ethical veganism goes beyond following a vegan diet and involves excluding all forms of animal exploitation from their lifestyle.
However, in contrast, another Employment Tribunal found last year that vegetarianism did not amount to a philosophical belief. It was accepted in that case that the claimant had a genuinely held belief that the world would be better if animals were not killed for food but they found that it did not concern a weighty and substantial aspect of human life and behaviour. This may mean that if a Tribunal were to make a judgment on dietary veganism alone, this would not be sufficient to constitute a philosophical belief.
In the researcher’s case, the individual had tweeted that transgender women cannot change their biological sex, and that men cannot change into women.
However, her belief that sex is a biological fact was found not to be worthy of respect in a democratic society and therefore did not meet the test. Importantly, the judge held that she was absolutist in her view and that a core component of this was that she would refer to a person by the sex she considered appropriate, even if this violated their dignity and/or created an intimidating, hostile, degrading or offensive environment. In that sense, it ultimately failed the test because of the way that her belief manifested itself in her actions.
Clearly, not all strong beliefs are capable of meeting the requirements, but what constitutes a philosophical belief has evolved in recent years to also include a belief in climate change, spiritualism, democratic socialism and a belief in Scottish Independence.
Ultimately, individuals who hold philosophical beliefs must not be treated less favourably because of those beliefs. How you manage these situations, and indeed other employment related matters, can at times be challenging but the cost of getting it wrong, both financially and in terms of reputation, could be very high. The best philosophy just might be to get some advice.
Miranda Hughes is an employment lawyer at Aberdein Considine
This article is published under the terms of the DB Direct service