In a guest post, Professor Peter Edge takes a critical look at Conisbee.
In Conisbee v Crossley Farms Ltd & Ors  ET 3335357/2018, Employment Judge Postle gave a reserved judgment in which he found that the Claimant’s contention that vegetarianism could be a protected characteristic under the Equality Act 2010 was not well-founded. The judgment has already been noted in this blog; in this supplementary post I will be focusing on the ET’s sharp distinction between vegetarianism and veganism, which it used – rashly – to find that ethical vegetarianism was incapable of constituting a religion or belief under the Equality Act 2010.
The ET found a number of reasons why the Claimant’s vegetarianism was not capable of constituting a protected characteristic under the Equality Act, although the actual judgment talks of vegetarianism simpliciter. The ET does not appear to have kept a tight focus on the beliefs of the Claimant, as opposed to a particular conception of vegetarianism which includes individuals who do not share his beliefs. It may have been wiser to follow the advice of Burton J, who noted in Grainger that “To establish a philosophical belief … it is plain that cross-examination is likely to be needed”.
The ET was keen to distinguish vegetarianism from veganism, perhaps because of a high-profile vegan case currently being considered, but more likely because of the ECHR jurisprudence finding that veganism and opposition to the manipulation of products of animal origin or tested on animals were protected by Article 9. The ET did so on at least two grounds and possibly three – none of which stand scrutiny.
First, vegetarianism was
“not about human life and behaviour, it is a lifestyle choice and in the Claimant’s view believing that the world would be a better place if animals were not killed for food. Clearly an admirable sentiment, but cannot altogether be described as relating to weight and substantial aspect of human life and behaviour” .
The ET clearly recognised that the Claimant’s vegetarianism was a practice based on its conception of the good, rather than a decision driven by aesthetics, economics, or digestion, but mischaracterised acting on this conception as a lifestyle choice rather than a weighty belief.
Postle EJ may also be dissociating human behaviour from the killing for food to which the Claimant objected. If the Claimant believed that non-human animals should not kill other non-human animals for food, there may be some difficulty in finding a link to human behaviour. In this case, however, the Claimant’s beliefs seem to relate to human conduct in relation to animals. It is not unusual for a religion or belief to provide guidance on how we should conduct ourselves in relation to our impact on the world around – indeed, influential judicial definitions of religion emphasise the importance of a code of conduct, rather than simply statements as to religious doctrine. Pacifism, for instance, is a belief about how human beings should be treated; but it is also a belief about how human beings should act. The Claimant’s vegetarianism, even if it lacks the first, clearly encompasses the second.
Secondly, vegetarianism did not attain
“a certain level of cogency, seriousness, cohesion and importance … the reason for being a vegetarian differs greatly among themselves, unlike veganism where the reasons for being a vegan appear to be largely the same … a clear cogency and cohesion in vegan belief, which appears contrary to vegetarianism” .
The monolithic view of veganism is odd. While some research suggests that a very substantial number of vegans, perhaps a majority, are either atheists or non-religious, some adherents of a range of religions see their veganism as a consistent manifestation of their religious beliefs rather than an entirely separate set of decisions. So there are atheist vegans and Buddhist vegans, for instance – both are vegans, but the atheist vegan probably would not understand their veganism on the basis of the Buddhist teachings around dukkha and samsara that a Buddhist vegan might. The specifics of vegan practice may also differ very widely between individuals – as a cursory consideration of honey consumption reveals.
If diversity is really a problem in identifying a philosophical belief, it could be addressed in relation to vegetarianism by focussing on the particular beliefs held by the Claimant, rather than considering “vegetarian” as a category. To oversimplify slightly, to consider “Christianity” rather than “Monotheism” when considering a Christian claimant.
The ET also appears to have considered veganism as much more comprehensive a belief system than vegetarianism. Other decisions, particularly at ET level, have accepted comparatively narrow beliefs as protected. While believing that animals should not be killed and eaten is definitely narrower than ethical veganism, it seems wider than believing that animals should not be hunted for recreational purposes – found to be protected in Hashman v Milton Park (Dorset) Ltd  ET 3105555 2009. In that case, the vegan claimant had emphasised in particular his philosophical opposition to blood-sports on the basis that he opposed taking pleasure from the killing of animals.
Finally, although not entirely clear, Postle EJ may have adopted the argument of the Respondent that the Tribunal must find that the cogency of the belief was
“of a similar level to that of a religious belief … it might well be that his belief very strong, it is contended that for a significant number of vegetarians their belief is far less serious and quite clearly not at the level of religious belief … Vegetarianism is some way removed from veganism and could be argued to be a far less serious belief and for that reason, it falls short of attaining the level of cogency or seriousness similar to a religious belief” [31, alluded to at 44].
As noted above, a focus on the Claimant’s beliefs may have been useful here. Additionally, it is unclear how vegetarianism is less serious than veganism. For individuals whose practice is a manifestation of their fundamental beliefs as to how they should treat the world, a narrow view of what is thereby prohibited is just that – a narrower view – rather than a less strong view.
The Claimant’s counsel, Suhayla Bewley, made an excellent case for vegetarianism to be capable of falling within the protection of equality law, joining belief in the value of public sector broadcasting, the reality of man-made climate change, the merits of democratic socialism, and the value of Scottish independence in the current case-law. It is to be hoped the decision is appealed, not only to clarify the status of ethical vegetarianism but to integrate a growing body of unclear ET decisions.
Cite this article as: Peter Edge, ‘Vegetarianism as a protected characteristic: another view on Conisbee’ in Law & Religion UK, 21 September 2019, https://www.lawandreligionuk.com/2019/09/23/vegetarianism-as-a-protected-characteristic-another-view-on-conisbee/.