A UK employee has launched a landmark discrimination case, claiming his employer discriminated against him because of his veganism. Jordi Casamitjana, an ethical vegan, alleged he was unfairly disciplined and sacked by the League Against Cruel Sports. The League said he was fired for gross misconduct.
This landmark case initiated discussion and consideration as to whether workplace discrimination against vegans is unlawful in the UK under the protected attribute of “philosophical or religious belief”.
Ethical Veganism – A ground of discrimination?
In Australia, discrimination on the basis of veganism will only be successful if it falls under the protected attribute of “political opinion/belief”. Political opinion/belief discrimination is not unlawful under federal law. However, it could be unlawful in the Australian Capital Territory, Northern Territory, Queensland, Tasmania and Victoria in some circumstances.
In order to establish veganism as a political opinion protected under discrimination laws, a person would need to demonstrate that veganism is more a ‘political’ standpoint rather than a ‘personal’ matter and/or that veganism forms part of a religious belief which may extend to a philosophical belief as well. Philosophical beliefs on their own are not protected.
The issue of ethical veganism was raised in Vusal Asgarov v Living Edge (Aust) Pty Ltd, where an employee claimed the employer discriminated against him on the basis of his ethical veganism. The employee lodged his unfair dismissal claim out of time and the Fair Work Commission rejected the request for an extension of time. Consequently, the employee’s application was dismissed and these legal issues were not explored.
Nevertheless, if ethical veganism could be considered a protected attribute under anti-discrimination laws, then it begs the question as to whether other strongly held and strictly practiced beliefs, opinions or activities are also protected.
Climate Change Discrimination
Aforementioned, only religious and political opinions/beliefs are recognised as protected grounds under Australia’s anti-discrimination laws. Philosophical beliefs such as a belief in climate change or humanism are not protected unless it can be argued that they form part of the accepted canons or tenets of an “acceptable” religion or political belief systems. This begs the question whether climate change falls under a religious or political belief system, constituting a protected attribute.
A strong belief in climate change and the resulting moral imperative to act in such a way as to minimise the damage of climate change is unlikely to be classified as a protected religious belief according to the tests from the Scientology case. It would fail because climate change beliefs are generally based on scientific knowledge and such beliefs are not grounded in any aspect of supernatural faith.
So is climate change a political opinion/belief? There is ongoing debate and discussion as to whether climate change falls under political opinion/belief for the purpose of anti-discrimination laws. An activity is not political merely because it is motivated by a political opinion. It is the activity itself, which, when viewed objectively must by its nature be political. Whilst it is not enough to show that the views or practices accord with a particular political party to establish discrimination, some activities are clearly political in their nature, for example, membership or an affiliation with a political party would be such a case.
Whilst it would be possible to argue that the belief in human-induced climate change is a ̳political opinion‘, it is unlikely for such arguments to succeed in an employment context as a ground for discrimination if the existing authorities are followed under the anti-discrimination laws and due to the narrow interpretation confining actions to government activities.
Climate Change and Freedom of Speech in the Workplace
Although climate change opinions may not be protected under anti-discrimination laws in the workplace, the discussion of this political opinion is still protected as free speech. In addition, an Applicant may succeed in an action under the new Pt 3-1 adverse action provisions of the Fair Work Act provided that they could establish that the practice in question, or exercise of workplace right, was by its nature political.
This issue was explored in Ridd v James Cook University (JCU), where an academic challenged his termination in the Federal Circuit Court of Australia, based on his own beliefs regarding climate change. In 2015, Professor Ridd told a journalist that JCU needed to “check their facts before they spin their story” as “bad science” and misleading photos were being circulated about climate change and its effect on the Great Barrier Reef. Professor Ridd was sacked as he was found to have breached JCU’s code of conduct.
Justice Vasta found that JCU’s code of conduct (which stipulates that staff are not to jeopardise the integrity or standing of the university or its reputation) was “subordinate” to an intellectual freedom clause in its 2013 Enterprise Agreement. Professor Ridd was awarded more than $1.2 million for multiple agreement breaches under the Fair Work Act.
  FWC 3868.
 Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120, (Mason ACJ and Brennan J at 137) and (Deane and Wilson JJ at 174).
 Nestle Australia Ltd v Equal Opportunity Board  VR 805.
 Evershed v City of Geraldton  EOC 92-745.
 Julie De Rooy, “Discrimination of The Grounds Of Philosophical Beliefs: Is It Time For A (Climate) Change In Australia?” (2010).
  FCCA 997.