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Are “Vaccine Sceptics” Protected by the Equality Act?

Could a worker who was dismissed after she refused the COVID-19 vaccine argue that she had been discriminated against for her belief in ethical veganism?

We have previously considered whether vegetarianism and veganism might qualify as “philosophical beliefs” under the Equality Act 2010, which would provide the holders of those belief with protection from discrimination. Under the test from Grainger plc v Nicholson, a belief will only be “philosophical” if it:

  • is genuinely held;
  • is a belief, as opposed to an opinion or viewpoint based on the present state of available information;
  • is related to a weighty and substantial aspect of human life and behaviour;
  • has a certain level of cogency, seriousness, cohesion and importance; and
  • is worthy of respect in a democratic society, not being incompatible with human dignity or in conflict with fundamental rights of others.

In Casamitjana Costa v League Against Cruel Sports, the employment tribunal confirmed that the claimant’s veganism was a philosophical belief, and therefore protected. Mr Casamitjana genuinely held his belief in ethical veganism, and it had a weighty and substantial effect on his life and behaviour. For example, he:

  • ate a 100% vegan diet, avoiding foods that could potentially harm animals in their production;
  • avoided using products tested on animals;
  • would not allow any food or product containing animal products into his home;
  • avoided relationships with non-vegans;
  • only worked in the field of animal protection; and
  • walked rather than using public transport, to avoid accidental crashes with animals.

Clearly then, ethical veganism can qualify as a philosophical belief for the purposes of the Equality Act, although each case will need be judged on its merits and must pass the relatively high bar from Grainger.

The recent case of Owen v Willow Tower Opco 1 Ltd involved a care home worker who refused the COVID-19 vaccine. In June 2021, the care home decided that all of its staff should be vaccinated. Ms Owen refused, and submitted a grievance in August 2021, alleging that she was vegan and therefore exempt from the vaccine. Ms Owen was referred to occupational health, which confirmed that there was no health condition which prevented her from getting vaccinated. Consequently, her grievance was not upheld. Ms Owen continued to refuse to get the vaccine, and was dismissed on 12 November 2021, after it became a legal requirement for staff in care homes registered with the Care Quality Commission to be vaccinated. Ms Owen brought claims of unfair dismissal and religion or belief discrimination to the employment tribunal.

At a preliminary hearing, the employment tribunal set about determining the nature of Ms Owen’s belief in veganism, and whether it passed the test from Grainger. The tribunal accepted that Ms Owen followed a vegan diet and avoided using some non-vegan products, as was the case in Casamitjana. However, beyond this, Ms Owen failed to explain how she had modified her life to follow her belief. Indeed, Ms Owen even used non-vegan gloves while working in the care home, in stark contrast to Mr Casamitjana’s zealous approach to veganism.

The employment tribunal therefore determined that Ms Owen did not have a genuinely held belief in ethical veganism and dismissed her discrimination claim.

Although veganism may qualify as a philosophical belief in some circumstances, this will not always be the case, and a claimant will need to show that their veganism is a genuinely held belief which has a significant impact on their life and behaviour. Simply having a vegan diet or occasionally avoiding using non-vegan products is unlikely to suffice.

Even if Ms Owen had been able to establish that she had a genuinely held belief in ethical veganism, it is doubtful that this would have been sufficient for her discrimination claim to succeed.

For a direct discrimination claim, she would need to show that the care home treated her less favourably because of her veganism – and there is nothing to indicate that was the case here.

For an indirect discrimination claim, Ms Owen would have to demonstrate that the care home had applied a provision, criterion or practice which was discriminatory in relation to her veganism, meaning that it would put her and other ethical vegans at a particular disadvantage compared to non-vegans. While Ms Owen would likely argue that the requirement to be vaccinated was discriminatory in relation to her veganism, the care home would have a defence if it could show that the requirement was a proportionate means of a legitimate aim – which it almost certainly could here, particularly given the introduction of the legal requirement to be vaccinated in November 2021.

Is there any prospect of “vaccine sceptics” arguing that their hesitancy regarding vaccination is itself a philosophical belief, rather than relying on veganism as a proxy? The employment tribunals have been clear that political beliefs cannot be philosophical beliefs for the purposes of the Equality Act. However, those who are strongly opposed to vaccination might argue that their genuinely held belief is more akin to a religious or ethical belief, as with ethical veganism. It would be difficult to argue against the suggestions that beliefs on vaccination relate to a weighty and substantial aspect of human life and behaviour, particularly in light of recent events, and that these beliefs are serious and important to the people that hold them.

One stumbling block in such an argument may be the final limb of the Grainger test, and whether such beliefs are worthy of respect in a democratic society, being compatible with human dignity and the fundamental rights of others. Opponents might argue that “vaccine scepticism” is incompatible with the fundamental rights of at-risk persons, who are unable to get vaccinated due to health conditions and are therefore reliant on herd immunity via widespread vaccination to protect their own health.

It is very likely that there will be further employment litigation in this area, with “vaccine scepticism” becoming more topical since the COVID-19 pandemic. We will keep you updated.

If you would like advice on policies for your employees or workers, or are concerned about a grievance or claim brought by one of your staff, please get in touch at [email protected]