Is a fear of catching Coronavirus a protected belief under the Equality Act 2010?

No, said the Employment Tribunal in the case of X v Y, heard last month.

This case received extensive media attention and was also widely misreported. The Daily Mail headline is misleading (‘Why you CAN’T refuse to go to work if you are afraid of catching Covid: Staff wary of the virus cannot use it as a reason to stay away from the office, employment tribunal rules’); the claim to the Employment Tribunal (ET) included a number of elements, including an argument that a fear of catching Covid was a belief capable of protection under the Equality Act 2010. The Judgment issued on 15 December 2021 was a preliminary decision dealing solely with this one strand of discrimination and not the remaining elements of the claim; a crucial point missing from the media reporting.

The facts

The Claimant brought proceedings in the ET, claiming, among other things, that she had been discriminated against by her employer when she chose not to return to work in July 2021 on health and safety grounds.

Specifically, she informed the Respondent that that she was worried about the increasing spread of the virus and feared that she would get it and pass it onto her husband who was at high risk of getting seriously unwell if he contracted the virus.  The Respondent refused to accept such concerns and withheld her pay as a result.

A preliminary hearing took place in December 2021 to allow the ET to decide if the Claimant’s belief in a fear of catching Covid-19 and a need to protect herself and others, amounted to a philosophical belief for the purposes of the Equality Act 2010.

The law

The Equality Act 2010 offers protection to employees and workers from discrimination based on one or more “protected characteristics”. In recent years, there has been a considerable number of cases surrounding the protected characteristic of “religious or philosophical belief”.

In order to establish that a belief is a philosophical belief; and therefore worthy of protection under the Equality Act 2010 the Claimant must be able to demonstrate that the belief is:

1. genuinely held;
2. not an opinion or viewpoint based on the present state of information available;
3. a belief relating to a weighty and substantial aspect of human life and behaviour;
4. attain a certain level of cogency, seriousness, cohesion and importance; and
5. worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

All of the above criteria must be met before the belief will be protected.

Whilst the Claimant’s belief satisfied three of the required criteria, the ET found that she was unable to satisfy the second and third criteria.

The ET held that the Claimant’s fear of catching Coronavirus was not a belief, but was instead a reaction to a threat of harm and “a widely held opinion based on the present state of information available”.

In relation to the third criterion outlined above, the ET found that the threat was ‘time specific’ and would cease to exist when the dangers of the pandemic are no longer present and therefore it could not be considered a weighty and substantial aspect of human life and behaviour.  Furthermore, her concerns were about protecting herself and her husband (as opposed to society generally), which the Tribunal considered was not wide enough to satisfy the test.

The implications

This case is the first of its kind reported, and will likely be welcomed by employers taking steps to get their workforce back into the workplace as the work from home guidance is relaxed. This point has however only been heard at ET level and therefore the decision is not binding on future cases.

Whilst this case should reassure employers that they are unlikely to have a discrimination claim based on a philosophical belief in such circumstances, there remains the risk of other claims being pursued by employees relying on their fear of catching Covid.

The stronger claim (and likely to be one of the ‘other claims’ referred to in this case) would be one framed under section 44 and 100 of the Employment Rights Act 1996, where an employee can claim that they have been dismissed or otherwise suffered a detriment for raising health and safety concerns, including where employees reasonably consider there is ‘serious and imminent danger’. In such cases, employees are entitled to leave the workplace and/or take appropriate steps to protect themselves. There is no period of service required to bring such a claim and it is also worth remembering that it is the employee’s belief that matters, not the employer’s opinion. There have been a number of reported ET cases dealing with claims of this nature where employees have been successful. The cases where employees have failed tend to arise where their behaviour outside the working environment was inconsistent with their stated concerns e.g. attending the gym.

It is clear that the reporting of the case is misleading, with remaining claims capable of being pursued by employees relying on a fear of catching Covid but utilising different legal tools.

Depending on the specific circumstances of the employee, there may be other claims available to an employee who is resistant to a return to the workplace including disability discrimination claims. Specific advice should be sought on an individual basis.