Background

Ms Owen was an employee of Willow Tower OPCO 1 Ltd, which runs residential nursing care facilities including the Sunrise home at which she worked. In 2017, she had asked to relinquish her contracted hours and asked to be placed on the “bank”, from which she could cover as many shifts as were available [8&9]. She also worked for herself as a Foot Health Practitioner, often providing services to the respondent [10].

By June 2021, following concerns raised by family members of residents, Willow Tower decided that all staff and contractors in the care home at which she worked had to have COVID vaccinations, though the legislation obliging those who worked in care homes to be vaccinated had not yet come into effect [14]. She refused to be vaccinated and was told that, in the circumstances, the care home “would like to continue offering you work however that would have to be on a redeployed basis, likely to the kitchen or laundry department” [16].

At a grievance hearing in August 2021, she explained she followed a vegan diet and therefore believed that she would be exempt from vaccine – “I am a vegan person and refused to have a vaccination that contains animal products”. She also raised concerns about the efficacy of the vaccine and any potential side effects that might occur but were at that time unknown [17]. She was referred to occupational health to see if there were any medical reasons why she could not be vaccinated, given that she was following a vegan diet, but there was no evidence before the Employment Tribunal that she was medically exempt from the vaccine [18]. In November 2021, vaccination as a condition of deployment in CQC registered homes came into effect under the Health and Social Care Act 2008 (Regulated Activities)(Amendment/Coronavirus) Regulations 2021 and she was dismissed [25&26]].

In Ms T Owen v Willow Tower OPCO 1 Ltd [2023] 2400073/2022, which was a preliminary hearing, the issues before the Tribunal were whether Ms Owen had sufficient continuity of service within the meaning of s.108 Employment Rights Act 1996 to bring a claim for unfair dismissal under s.98(4) and (more interestingly from the point of view of law and religion) whether her belief in veganism amounted to a protected characteristic within the meaning of s.10 Equality Act 2010.

On the first issue, the ET concluded on the facts that she had not acquired the necessary continuity of employment under s.108(1) Employment Rights Act 1996 to bring a claim of unfair dismissal [60].

The claimant’s veganism

As to the issue of her avowed veganism, she asserted that she was an ethical vegan and that it was “a protected philosophical belief”, going on to state that “As all Coronavirus vaccines have been tested on animals, [she] considers them to be inconsistent with her vegan beliefs” [28].

In her written submissions to the ET, she said:

“I declined the vaccine on the grounds that I am a Vegan. There was no clarification as to whether or not the vaccination contained animal products or indeed had been originally tested on animals. I object to the consumption of animal products on ethical grounds. In practice, I follow a strict vegan diet, nor do I use products that have been tested on animals, or products that contain animal contents…

I chose to decline on each occasion due to my ethical belief. On the 25th March 2021 Alison approached me and said ‘You are to book in for your vaccination next Wednesday’ (31st March). I replied ‘No, as I have chosen not to on ethical grounds.’ I felt bullied as this was not the first time I had been approached.” [29].

Willow Tower’s response was that her evidence on the issue of veganism was “woeful” ­– there was no evidence to support her contention that she lived her life in accordance with ethical vegan principles [48].

The judgment

As noted above, her application failed in any event for lack of the necessary continuity of employment under s.108(1) Employment Rights Act 1996 [64].

On the issue of her veganism as a protected characteristic, Employment Judge Mellor distinguished the application from the facts in Mr J Casamitjana Costa v The League Against Cruel Sports [2020] UKET 3331129/2018. The question for the Tribunal was whether Ms Owen had produced sufficient evidence that she held her belief in ethical veganism to the extent required by the Grainger guidelines. It was not enough for her simply to say that she was an ethical vegan – she needed to demonstrate the genuineness of her belief [52].

There was little evidence to support her assertion. She followed a vegan diet and avoided using some products that were not vegan. However:

1. She was unable to say when she started having a belief in ethical veganism.
2. She repeatedly said that she followed a vegan diet and that was the same thing as ethical veganism.
3. She was unable to say anything about how her life was modified or structured to follow ethical veganism other than her diet and some products.
4. She accepted that she did use products in the respondent’s employment that were not vegan, but that she would use gloves.
5. She gave no examples of ways in which her daily life was structured to adhere to her belief. She said that she did not wear leather, “but she did not expand on that and shrugged when she was asked about wool”.
6. “It was remarkable that so little of the documentation she had created for her grievances and subsequently for this tribunal referred to her ethical veganism or described what that was”.
7. The most significant reference to veganism was to her diet – but that did not go far enough to establish a belief in ethical veganism.
8. Her main criticisms of the COVID vaccine appeared not to be connected to veganism, but that it was experimental and might contravene health and safety legislation [52].

She had not, therefore, established that she had a protected characteristic within the meaning of s.10 Equality Act: claim dismissed [63].