In May this year an NHS Trust in London advertised a vacancy for an Occupational Therapist (OT) in eating disorders and made it clear that vegans should not apply. The International Vegan Rights Alliance (IVRA) challenged the ad as unlawfully discriminating against vegans.
The advert stated: “Unfortunately, OTs with vegan diets cannot be considered,”
In the detailed job specification they elaborated: “NB Veganism or other highly restrictive eating practice cannot be accommodated.”
In response to challenge the Trust quickly apologised and altered the ad to remove the restriction. While that was a positive outcome, it highlights a general lack of awareness of vegan rights in the UK and, perhaps more importantly, a prevailing misconception of veganism which is undoubtedly one of the main causes of the widespread failure to acknowledge and uphold their rights.
It is important that vegans living in the UK are aware of their rights, in order that the can advocate clearly and confidently when their rights are not respected. It is also important that government bodies, employers and businesses are aware of these rights, in order that they do not inadvertently infringe them, thereby exposing themselves to claims. This is particularly so given the exponential growth of veganism in the UK over the past 5-10 years.
Vegan rights: veganism as a protected belief or conviction
Most people are unaware that vegans in the UK have the same legal rights as people who hold religious beliefs. If you think of veganism as a diet, as it is very often portrayed, the idea of legal protections for vegans may not make much sense.
However, the real meaning of veganism is living by the belief or conviction that it is wrong to exploit and kill living beings unnecessarily. Vegans manifest that belief by avoiding supporting or participating in animal exploitation for food, clothing, entertainment or any other purpose, in so far as is possible and practicable. That definition dates back to the 1940s. In the job advert veganism was referred to as a “restrictive eating practice.” In fact, diet is no more than an incident of the moral conviction that is veganism.
Vegan convictions have been recognised as “cogent, serious and important,” and are therefore protected beliefs which have the same status as religious beliefs in terms of human rights law. This is not because veganism is akin to a religion (it is not); it is because we have recognised the fundamental right of freedom of thought, conscience and belief, which covers personal convictions if they are cogent, serious and important.
People who hold protected beliefs are entitled to manifest those beliefs, by living in accordance with them, subject only to restrictions prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. These rights flow primarily from Article 18 of the International Convention on Civil and Political Rights (“ICCPR”), Article 9 of the European Convention on Human Rights (“ECHR”) and the Human Rights Act 1998.
State bodies, such as hospitals, schools and prisons, as an extension of the state, have the duty to comply with these rights. In addition, the Government has a positive obligation to ensure these rights, which may involve the government passing laws requiring that private employers and businesses also comply. (Article 1, ECHR; Article 2(2) ICCPR).
Manifestation of the vegan conviction that it is wrong to exploit and kill non-human animals is primarily through the avoidance of using or consuming animals, products made using animals and animal derived substances. The availability of animal-free alternatives is therefore often critical to a vegan’s ability to live according to their convictions.
Vegans often experience difficulties in contexts in which they are dependent on others to enable them to live by their convictions. For example, if a person who is vegan is an in-patient in a hospital, they will be dependent on that hospital to provide them with food and drink that is suitable for vegans; currently provision in the UK is patchy and varies greatly from one hospital to another. Similarly, children who are vegan will be dependent on their school canteen providing food and drink that is suitable for vegans; this is currently not the case in many schools.
In the employment context, there may well be scenarios in which a vegan employee is dependent on their employer providing options suitable for vegans, for example at a work conference or function. This goes beyond food provision; for example, it would be against a vegan’s convictions to wear the skin of an animal or to have to purchase cow’s milk for their colleagues.
Discrimination against vegans
It is also unlawful to discriminate against vegans, as protected beliefs are relevant characteristics in terms of the EU Equality Framework Directive (2000), which was incorporated into the UK through the Equality Act 2010. The Act applies to Britain, not to Northern Ireland.
In addition to being cogent, serious, coherent and important, the conviction that it is wrong to exploit and kill animals unnecessarily has been recognised as a protected philosophical belief. It is a belief or conviction and not merely an opinion, it regards a weighty and substantial aspect of human life and behaviour, and it is worthy of respect in a democratic society; as such, it is unlawful to discriminate against vegans, either directly because they are vegan, or indirectly, when an apparently neutral policy or practice causes them a disadvantage due to their vegan convictions.
The Equality Act applies more broadly than the human rights laws referred to above, as in addition to government entities and private entities carrying out public functions, it applies to employers and private service providers.
Direct discrimination is permissible only if the particular occupational activities concerned, or the context in which they are carried out, mean that it is a genuine and determining occupational requirement. The job advert in which vegans were told not to apply was clearly an instance of direct discrimination, as vegans were being treated differently because they were vegan. For this to be permissible the Trust would have to show that being non-vegan was a genuine and determining occupational requirement.
The Trust appeared to have assumed that anyone living by the moral conviction that it is wrong to exploit and kill living beings unnecessarily would be incapable of performing the role of OT for someone with an eating disorder.
The fact that vegans do not view animals as food does not mean that they have a “restrictive” diet, as there are vegan versions of every food imaginable, from deep fried pizza and macaroni and cheese to fat burgers and fries lathered in mayonnaise and guacamole; a vegan OT would not be restricted from participating in the consumption of “high risk” foods, if that is what the therapy entailed. It is clear that there was no “genuine and determining occupational requirement” and the Trust recognised that when challenged.
Indirect discrimination is permissible only if the policy or practice is necessary and proportionate as a means of achieving a legitimate aim.
For example, a work rota requiring staff to take turns buying cow’s milk is not directly discriminatory against vegans; it does not treat them differently because they are vegan. However, the impact on vegans is indirectly discriminatory, as purchasing cow’s milk involves supporting animal exploitation and killing, which conflicts with their convictions. Indirect discrimination is only permissible if the employer can show that the blanket policy has a legitimate aim and that it is necessary and proportionate to refuse to exempt vegans from the rota.
Service providers are under the same obligations and therefore if they do not provide options for vegans they will have to justify that by showing that to do so would be unduly burdensome, either financially or in some other way. As most if not all food providers cater for vegetarians, religious and other dietary requirements, such as gluten free, it would be difficult to show that it would be unduly burdensome for them to provide vegan options, particularly as a vegan option will often also be suitable for one or more of these other groups.
Claims by vegans
There have been a number of claims to the European Court of Human Rights (ECHR) which are relevant to vegans.
For example, a prisoner took a claim in relation to the refusal by a UK prison to exempt him from working in the print room, where non-vegan inks were used, and in two cases the ECHR confirmed that where dietary requirements are an incident of protected beliefs (in those cases religious beliefs) the burden will be on the state to show that the provision of suitable food would be unduly burdensome, such that it would have a negative impact on the ability of the prison to cater to prisoners as a whole.
In both cases the Court rejected the state’s argument and ordered that they were required to provide suitable food.
Brexit and vegan rights
The impact of Brexit on the rights applicable to vegans in the UK is uncertain until we know the outcome of the discussions currently going on in Parliament and the Brexit negotiations themselves. The UK leaving the EU will not in itself affect its status as a signatory to the ECHR; we remain bound by it unless and until we withdraw from it. The Equality Directive is part of EU law and will therefore be covered by the European Union (Notification of Withdrawal) Bill and subject to any governmental powers of amendment it contains when it is finally passed.
At the time of writing we don’t know what the outcome of this will be. We do know that the UK will remain a party to the ICCPR, which also contains the right to freedom of thought, conscience and belief.
Barbara Bolton is a dispute resolution partner at Shepherd & Wedderburn and UK representative for the International Vegan Rights Alliance