Whistleblowing, beliefs and the Equality Act

One of the latest whistleblowing cases to hit the headlines, and one which the best employment lawyers will be keeping a close eye on, is a challenge based on beliefs. Our UK employment lawyers take a look at the whistleblowing legislation and this case, in which the vegan claimant argues that his philosophical belief in ethical veganism should be protected under the Equality Act.

Whistleblowing and discrimination

On 4th July 2018, Jordi Casamitjana posted on his crowdfunding page that he has now submitted his claim to the Employment Tribunal. In essence his claim is that he was dismissed for making disclosures about the pension funds that his employer, the charity the League Against Cruel Sports, was investing in. Mr Casamitjana, an ethical vegan, had previously worked for the League of Cruel Sports and had no issue with the pension scheme. However, when he returned to work for the charity in 2016 and again enrolled in the pension scheme, he discovered that the pension was investing in companies known to be engaged in animal testing. He raised the issue and discussions took place about moving the pension into ethical funds, although the rates in the alternative fund offered were less attractive than others available. Mr Casamitjana’s Employment has been terminated – he alleges because he raised this issue; the League of Cruel Sports has not commented – and the claim has now been filed with the Employment Tribunal. Our London employment law solicitors understand the claim relates to his dismissal for making a protected disclosure under whistleblowing legislation, and also to discrimination on grounds of his philosophical belief in ethical veganism.

Whistleblowing in the UK

The whistleblowing legislation is designed to protect workers who make disclosures about something that is happening in the workplace that amounts to some kind of wrongdoing. The disclosure must be ‘in the public interest’ – in other words, the wrongdoing must affect others. There have been a number of whistleblowing claims in the last few years, that Employment claim solicitors will be familiar with. For example, in Chesterton Global Ltd v Nurmohamed, one of the most recent cases, the Court of Appeal looked at the question of ‘in the public interest’ and confirmed that a disclosure could be in the public interest even if there was a ‘private’ element to the disclosure.

In another significant whistleblowing case, Royal Mail Group Ltd v Jhuti, the Employment Appeal tribunal held that the reason for a dismissal could be the protected disclosure (making the dismissal automatically unfair) even if the dismissing manager did not know about the disclosure. This would be the case if the dismissing manager had been kept in the dark about the situation by someone more senior who was aware of the full picture and had full knowledge of the disclosures.

Until we see the decision of the Employment Tribunal, we will not know the full facts surrounding the termination of Mr Casamitjana’s Employment. However, he has rehearsed his arguments around his whistleblowing and Equality Act claims on his crowdfunding page. He argues that donors to animal protection charities have the right to expect that the money they donate is invested in a way that is compatible with their beliefs, and that investing in companies that engage in animal testing is a betrayal of those beliefs. The argument is that there is a public interest in this disclosure – it is not just about the employees of the League of Cruel Sports and their pension, but about the wider issues of a charity that accepts donations from members of the public.

Discrimination on grounds of philosophical belief under the Equality Act

Since 2010, the Equality Act has brought together all the discrimination legislation in one Act of Parliament. The Equality Act covers philosophical beliefs just as it protects religious beliefs; however, in order to succeed, 5 criteria, established in the case of Grainger v Nicholson, have to be established in order to determine whether a particular philosophical belief can be protected.

These are that the belief:

- must be genuine;

- is not just an ‘opinion’ in relation to particular circumstances;

- is in relation to a weighty and substantial aspect of human behaviour;

- has attained a certain level of cogency, seriousness, cohesion and importance; and

- is not contrary to the fundamental rights of others.

Beliefs that have not met the criteria of a philosophical belief that must be protected under the Equality Act include a belief that it is important to wear a poppy on November 11th, that Government conspiracies led to the 9/11 and 11/11 terrorist attacks, and beliefs that homosexuality is against God’s law and there was no Holocaust.

What amounts to a ‘philosophical belief’

It is more difficult to speculate as to what might be considered a philosophical belief, or if the case for ethical veganism as a philosophical belief will succeed, but again, there are some cases to assist. In Harron v Chief Constable of Dorset Police, a case which concerned the Claimant’s belief that public money should not be wasted, the Employment Appeal Tribunal said that the bar should not be set too high when considering the Grainger criteria.

Other philosophical beliefs that could be protected by the discrimination laws in the Equality Act include: a belief that potential customers should not be deceived to obtain sales (Hawkins v Universal Utilities Ltd t/a Unicom); a belief that "public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion" (Maistry v BBC); a belief in the importance of public service (Anderson v Chesterfield High School); and a long-held belief in democratic socialism (Olivier v Department for Work and Pensions). What is important to remember that each case is different and whether something is a philosophical belief will depend on the circumstances of the individual claimant in any case.

It will be interesting to see what the outcome is of both the whistleblowing and discrimination claims in this case – particularly as it is the first case where an ethical vegan claims protection from discrimination on the basis of this as a philosophical belief. We shall keep you posted.

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