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  • Writer's pictureAlfio Bonanno

Philosophical Belief as a Protected Characteristic: The recent Owen v Willow Tower Opco case




The Owen v Willow Tower Opco case offers some valuable insights into the complex dynamics surrounding philosophical beliefs and employee rights in the workplace. This article will explore the facts leading to Ms Owen's dismissal, analysing the legal considerations involved and what it takes for a belief to qualify as a protected characteristic under the Equality Act.


Background and Context:


Ms T Owen was an employee of Willow Tower OPCO 1 Ltd, a provider of residential nursing care facilities, including the Sunrise home where she worked. In 2017, Ms Owen requested to transition to the "bank" system, allowing her to cover shifts as they became available. Additionally, she worked as a Foot Health Practitioner, often providing services to the respondent.


In June 2021, due to concerns raised by family members of residents, Willow Tower decided to implement a mandatory COVID-19 vaccination policy for all staff and contractors in the care home. It is worth noting that at the time, the legislation obligating vaccinations for care home employees had not yet come into effect. However, in line with proactive measures and resident safety, Willow Tower sought to ensure a vaccinated workforce.


Ms Owen's Ethical Veganism:


During a grievance hearing in August 2021, Ms Owen disclosed her adherence to ethical veganism as the primary reason for her refusal to receive the COVID-19 vaccine. As an ethical vegan, she firmly believed that vaccines might contain animal products, which contradicted her vegan principles. Ms Owen also expressed concerns about the vaccine's efficacy and potential unknown side effects, given its novelty at that time.

In her written submissions to the Employment Tribunal, Ms Owen stated, "I declined the vaccine on the grounds that I am a Vegan. There was no clarification as to whether or not the vaccination contained animal products or indeed had been originally tested on animals. I object to the consumption of animal products on ethical grounds."


Dismissal based on Non-Compliance:


As a result of Ms Owen's refusal to comply with the mandatory vaccination requirement, the care home management informed her that she could continue working on a redeployed basis, likely in the kitchen or laundry department. However, despite the alternative options offered, Ms Owen persisted in her refusal to receive the vaccine.


To explore potential medical exemptions, an occupational health referral was arranged. However, no substantial evidence was presented to the Employment Tribunal indicating that Ms Owen had a genuine medical exemption from the vaccination requirement.


On 12 November 2021, Willow Tower terminated Ms Owen's employment. The dismissal occurred as the legal obligation for vaccinations in CQC registered homes came into effect under the Health and Social Care Act 2008 (Regulated Activities) (Amendment/Coronavirus) Regulations 2021.


As Ms Owen could not provide a genuine exemption and comply with the legal requirement, the care home was left with no choice but to terminate her employment to ensure compliance with regulatory obligations. As a result, MS Owen brough a claim of belief discrimination to the EAT.


Legal Considerations and the preliminary hearing:


The Owen v Willow Tower Opco case involved two primary legal considerations: continuity of service and whether Ms Owen's belief in ethical veganism constituted a protected characteristic under the Equality Act 2010.

Regarding continuity of service, the Employment Tribunal concluded that Ms Owen had not acquired the necessary continuity of employment to bring a claim of unfair dismissal under the Employment Rights Act 1996. The tribunal analysed the facts and determined that the continuity requirements were not fulfilled.

Regarding ethical veganism as a protected characteristic, Employment Judge Mellor distinguished the application from the facts in the notable case of Mr J Casamitjana Costa v The League Against Cruel Sports [2020] UKET 3331129/2018. The central issue for the tribunal was whether Ms Owen provided sufficient evidence to establish the genuineness of her belief in ethical veganism, as outlined in the Grainger plc v Nicholson [2010] IRLR 4 (EAT) guidelines.


The tribunal found that Ms Owen's evidence fell short in demonstrating the necessary depth of belief. While she adhered to a vegan diet and avoided some non-vegan products, including leather she was unable to specify when she adopted ethical veganism or provide extensive details about how her life was structured around this belief beyond her dietary choices. Furthermore, when questioned around the use of wool, MS Owens shrugged. The tribunal also noted that she acknowledged using non-vegan products during her employment, albeit while wearing gloves. Moreover, the documentation submitted by Ms Owen lacked substantial references to her ethical veganism, with a greater focus on the experimental nature and potential health and safety concerns of the COVID-19 vaccine.


As a result, the tribunal concluded that Ms Owen had not established a protected characteristic within the meaning of Section 10 of the Equality Act 2010, and her claim was dismissed.


Conclusion:


In conclusion, the Owen v Willow Tower Opco case serves as a reminder of the rigorous criteria set by the Equality Act 2010 for a philosophical belief to be protected. This ruling should provide some reassurance to employers who may be concerned about employees claiming protection for their beliefs.


It is evident that a mere change in a small part of an individual's lifestyle is not sufficient to meet the threshold. Rather, the belief must have a substantial impact on various aspects of the individual's life, including their travel choices, consumption habits, and the depth of their convictions. This requirement underscores the need for beliefs to significantly shape and influence an individual's overall way of life to be considered protected under the law.


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