Strict vegans can insist they are being indirectly discriminated against if they face consequences for refusal, warns Adrian Henderson.
A local catering company has been contracted to provide catering at a large one-day corporate event. All employees are required to prepare a set of dishes, many of which contain either meat or dairy products. At the start of the day, one of the employees, Keith, tells his manager, Mick, that he is not happy handling meat or dairy due to being a strict vegan. Mick tells Keith that unless he follows orders on the preparation of the food, he will face disciplinary action and possible dismissal. Keith tells Mick he is not happy and that Mick is being discriminatory against him.
Under the Equality Act 2010, employees are protected from discrimination based on nine specific protected characteristics, one of which is religion and belief. If an employee is treated badly solely because of their religion or belief (or any other protected characteristic, for that matter), this can constitute unlawful direct discrimination.
Employees are also protected against indirect discrimination. Unlike direct discrimination, the employee is not made to suffer directly because of a protected characteristic, but rather is made to follow a work-based practice that disadvantages them because they have a protected characteristic (for example, making someone handle animal food products, thus causing them distress due to their belief as a strict vegan).
The question of whether veganism constitutes a legitimate belief for this purpose has recently been settled (for now) in the case of Casamitjana v League Against Cruel Sports, which ruled that so-called ethical veganism does constitute such a belief, if the particular belief held meets the philosophical threshold, in this case that it forms a fundamental part of the individual's belief system, lifestyle and behaviour and is more than mere subjective opinion.
It is worth noting that other recent claims arguing that vegetarianism constitutes such a belief have failed due to not sufficiently meeting this threshold.
Here, it is clear that while Keith's treatment probably does not constitute direct discrimination, it could constitute indirect discrimination: he has been made to follow specific instructions that disadvantage him due to his belief, which is a protected characteristic.
The first thing the company should do is investigate whether Keith's veganism really does cross the threshold into ethical veganism, ie is more than just subjective opinion.
If it does, the risk here is should Keith continue to refuse Mick's instructions and face disciplinary action, he could claim indirect discrimination against the company, which could be found liable for Mick's actions as a member of its staff. Keith could also take action against Mick personally.
In this scenario, the company should be carrying out the following checks:
- Is Keith actually protected as an ethical vegan, or are his beliefs less fundamental?
- Are there any alternatives for Keith, such as only handling vegan-friendly products while working? If not, the company could claim there are no practical alternatives here, given the resources available to the company. Were the stalemate to continue, Keith could ultimately be lawfully dismissed.
Companies should also be looking at the following preventative measures to avoid liability for the discriminatory actions of individual employees:
- robust equality and diversity policies, visible and accessible to all employees;
- compulsory and regularly updated comprehensive training on anti-discrimination measures to all employees, including the difference between direct and indirect discrimination; and
- reporting mechanisms to ensure discriminatory behaviour is swiftly dealt with if it ever threatens to occur.
In the worst case, Keith could bring an employment tribunal claim of unlawful discrimination against the company. If successful, this could prove costly, both financially and reputationally. The tribunal could award substantial damages for injury to feelings, which could be anything from £900 if deemed less serious to, in the most severe cases, more than £40,000.
Adrian Henderson is a solicitor at Royds Withy King
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