Religion and belief discrimination
An employment tribunal has found that a fear of catching Covid-19 is not a protected belief under the Equality Act 2010 (EA). Section 10 of the EA says that a belief means any religious or philosophical belief. To be a philosophical belief, the case of Grainger v Nicholson said the belief must be genuinely held, be a belief rather than a viewpoint or opinion, concern a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance and must be worth of respect in a democratic society. In X v Y, an employment tribunal looked at how the law applies to a claimed belief involving a fear of Covid-19.
In X v Y, the employee refused to return to work in July 2020 after the first lockdown. She was worried about getting Covid-19 herself and also about passing it on to her clinically vulnerable partner. She wrote to her employer saying she reasonably believed that returning to work would present a serious and imminent danger to herself and others due to Covid-19. In response her employer said they would not pay her and denied that her belief of serious and imminent danger was a reasonable one. The employee brought a claim for discrimination, saying her fear of Covid-19 was a protected characteristic.
The tribunal applied the Nicholson criteria to the facts. They accepted that the employee’s fear of Covid-19 was genuine. Her fears met the cogency part of the Nicholson test too. Her views were also worthy of respect in a democratic society. However they did not amount to a belief under section 10. The employee’s behaviour was a reaction to a threat of physical harm and the need to take steps to avoid it, which is something most if not all people do. Rather than a belief, the tribunal felt it was more of a widely held opinion or viewpoint based on current information about the risk of catching Covid. Although her fears were about a weighty aspect of human life and behaviour, the issue concerned the employee and her own steps to protect herself and others (mainly her partner) and was not a belief in wider terms. The claimed belief did not meet all five of the Nicholson criteria and was not a philosophical belief under section 10.
This case is not binding on other courts but shows how the employment tribunals will approach the issue of Covid-19 related beliefs and whether they attract protection under the Equality Act. Employers must still ensure that the workplace is Covid-safe to reduce the risk of health and safety based detriment and dismissal claims under sections 44 and 100 of the Employment Rights Act 1996. It’s not just about litigation though. With the omicron variant proving especially contagious, reducing the risk of spread in the workplace is also plain common sense. Reduced staffing due to illness and isolation means reduced productivity, extra pressure on existing staff and the risk that customer or client demands are not met. Reducing the spread of Covid at work is good for everyone, including the business.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539