The requirement to work from home, where possible, has been lifted in England and Scotland and eased in Wales and Northern Ireland. Although many people are now returning to the workplace, it is likely that some will be anxious about returning because of the risk of catching COVID-19.
In an interesting decision, the Employment Tribunal recently held in X v Y that a fear of catching COVID-19 was not a philosophical belief within the meaning of the Equality Act 2010.
The Equality Act 2010 (the Act) provides protection from discrimination because of religion or belief and section 10 of the Act states that:
- “Religion” means any religion and includes a lack of religion.
- “Belief” means any religious or philosophical belief and includes a lack of belief.
In assessing what constitutes a belief that will be protected under the Act, guidance was given in the 2010 EAT judgment in Grainger plc v Nicholson:
- 1. The belief must be genuinely held.
- 2. It must be a belief and not, an opinion or viewpoint based on the present state of information available.
- 3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- 4. It must attain a certain level of cogency, seriousness, cohesion and importance.
- 5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
On 31 July 2020, the claimant decided not to return to her workplace because of health and safety concerns relating to COVID-19. She was very worried about the increasing spread of the virus. She had a fear of catching it herself and of passing it on to her partner, who was at high risk of getting seriously unwell if he caught the virus.
The claimant made a protected disclosure and asserted her statutory employment rights about a danger to the health and safety of herself and others, which she reasonably believed to be serious and imminent.
The claimant was told that she would not be paid and that it was not accepted she had a reasonable belief that returning to work would put herself or partner in serious and imminent danger.
The claimant alleged that not being paid was a financial detriment and this was discrimination on the grounds of her belief, specifically, “a fear of catching COVID-19 and a need to protect myself and others”.
Employment Tribunal decision
The claimant’s claim included a complaint of unlawful discrimination due to the protected characteristic of religion or belief. A preliminary hearing was held to determine whether the claimant’s belief fell within section 10 of the Act.
The Employment Tribunal considered the Nicholson criteria and held that while criteria 1, 4 and 5 were met, criteria 2 and 3 were not.
It held that the claimant’s fear did not amount to a belief. “Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat”.
The claimant’s fear could also be described as a widely held opinion based on the present state of information available that taking certain steps, for example attending a crowded place during the height of the pandemic, would increase the risk of contracting COVID-19.
As the Employment Tribunal stated;
fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10 of the Equality Act 2010.
Interestingly, the Employment Tribunal also addressed the point that the fear was “time specific” in that it would only last while the pandemic continued.
Accordingly, as the belief did not meet the 5 Nicholson criteria, it was not a philosophical belief within section 10 of the Act.
It is important to note that the Employment Tribunal’s decision relates to the preliminary issue of “belief” and it is likely that other elements of the claimant’s case are continuing. Even so, the decision will be welcomed by many employers who are encouraging staff to return to the workplace at the moment.
Crucially, there are other pandemic-related Employment Tribunal claims that have been brought relating to health and safety issues. For instance, automatic unfair health and safety dismissals under section 100 of the Employment Rights Act 1996. For more details of the approach Employment Tribunals are taking in those cases, see our articles below.
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