Employers who can show reasonable health and safety steps have been taken against Covid-19 can derive some comfort from this judgement.
In July 2020 the employee refused to go to work due to a fear of catching Covid-19. The employer refused to pay them their wages. This led to a discrimination claim. The employee argued that the non- payment of wages was unlawful.
The employee argued that she was worried about the virus spreading and had a “genuine fear” of catching Covid and passing it on to her partner who was vulnerable.
The question for the tribunal was whether the employee’s ‘fear of catching Covid-19’ amounted to a protected belief under the legislation. The Equality Act 2010 prohibits discrimination against a number of ‘protected characteristics’, amongst them are religious or philosophical beliefs. However importantly, these beliefs must be genuinely held, concern a ‘weighty and substantial aspect of human life’, be cogent, serious and ‘worthy of respect in a democratic society and compatible with the right of others’. The employee in question argued her belief in the dangers of catching Covid-19 “formed a substantial aspect of human life and behaviour”.
The tribunal decided that the employee’s fear of catching Covid and a belief in the need to protect herself and others did not amount to a philosophical belief worthy of protection under the Equality Act 2010.
Even though he stated her fear of catching Covid was genuine, Employment Judge Mark Leach did not find that her fear amounted to a philosophical belief for the purposes of the Equality Act 2010. He said that “rather, it is a reaction to threat of physical harm and the need to take steps to avoid or reduce that threat”. The judgment also stated that “it can also be described as a widely held opinion based on the present state of information available that taking certain steps, such as attending a crowded place during the height of the current pandemic, would increase the risk of contracting Covid-19 and may therefore be dangerous. Few people may argue against that. However, a 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 EA 2010”. As a result, the case was dismissed.
Whilst this decision is not legally binding on others tribunals, it is a useful indication of how the arguments will play out as we continue to experience and witness the fallout from Covid-19.
Employers who sensibly consider health and safety in the work place, and who communicate and explain carefully the steps they have taken should take considerable comfort from this decision.
If you have any queries or require more detailed guidance on this subject or any issue relating to employment law, please contact a member of our multi-award winning Employment Team on 0330 191 043.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.