As cases that have arisen as a result of decisions being made during the COVID-19 pandemic begin to reach the Employment Tribunal, we are getting a clearer understanding of how established principles of employment law will be applied to some of the unique challenges of the past two years.
Most recently, the Tribunal decided that a fear of contracting COVID-19 was not sufficient to amount to a ‘philosophical belief’ and therefore did not attract the protection of the Equality Act 2010.
In the case of X v Y , the Employment Tribunal was asked to consider whether a fear of becoming infected with COVID-19 was a legally protected belief.
In accordance with the Equality Act 2010, employees are entitled to protection against unlawful discrimination on account of their religion or belief. ‘Belief’ is deemed to include any religious or philosophical belief, or a lack thereof.
In order to be protected, a philosophical belief must be genuinely held and amount to more than simply an opinion. The belief must relate to a weighty and substantial aspect of human life and behaviour and be cogent, serious, cohesive and important. There is also a requirement that such a belief be worthy of respect in a democratic society, and not affect other people’s fundamental rights.
Previously, pacifism and ethical veganism have been recognised as protected philosophical beliefs, however, in this case the Tribunal decided that a fear of catching COVID-19 was not sufficient to be protected.
On 31 July 2020, the Claimant, an employee of the Respondent, decided that she would not return to the workplace as she felt that she had ‘reasonable and justifiable health and safety concern’ in that she had a genuine concern that she would catch COVID-19 in the workplace. This was further compounded that she feared she could pass this on to her ‘high risk’ partner.
The Claimant raised these concerns with her employer, asserting that she reasonably believed she and her partner faced a serious and imminent health and safety danger. The Claimant therefore sought to assert her health and safety rights under the Employment Rights Act 1996.
The employer refused to accept her assertions and withheld wages until the Claimant agreed to return to work. The Claimant alleged that this behaviour amounted to direct discrimination as a result of a philosophical belief.
The Tribunal accepted that the Claimant’s fear that she could become infected with COVID-19 and subsequently infect her partner was genuinely held, but it refused to find that such a fear was a ‘belief’ in accordance with the Equality Act 2010.
The Tribunal accepted that the fear was cogent, serious, cohesive and important, it was worthy of respect in a democratic society and did not conflict with the fundamental rights of others.
Despite this, the Tribunal found that a ‘reaction’ to a perceived or real threat (physical or otherwise), even if there was a general consensus that the reaction was appropriate, would be more properly described as a widely held opinion rather than a belief. Views on how to best reduce risk of physical harm could not amount to a belief, and therefore a fear of becoming infected with COVID-19 and how to best reduce risk of infection not a philosophical belief.
Furthermore, the Tribunal held that although the fear of the harm caused by COVID-19 is in itself weighty and substantial, as the specific fear in this case only related to the Claimant herself and her partner, it was not wide enough to be weighty and substantial to human life.
The Tribunal therefore dismissed the claim.
What does this mean for Employers and Employees?
It is important to note that this ruling was a first instance decision at the Employment Tribunal, so it is not binding on any other Court or Tribunal. It is unclear at this stage whether the Claimant intends to appeal the decision.
It is widely reported that there has been a significant growth in the number of individuals unable to attend work due to positive COVID-19 results. This growth has coincided with the Omicron variant which has a higher transmissibility than previous variants of COVID-19. Although there are temporary Plan B measures in place in the UK, as more individuals are required to return to workplaces or return from remote-working arrangements there is significant scope for disputes to arise.
Where employees show a reluctance to return to work and cite fear of becoming infected with COVID-19, employers should consider whether there are practical steps which can be taken to help alleviate the main causes of concern. For example, if the concern relates to using public transport during the commute the employer may allow flexible start and finish times to avoid busier periods. If employees are concerned about social distancing at work, employers may consider phased returns to reduce the number of employees in the workplace at any one time. In some cases, reasonable adjustments may be required.
While the Claimant in X v Y was unsuccessful in her claim, withholding pay or dismissal of an employee carries the risk of other claims including automatic unfair dismissal (for health and safety reasons) and discrimination where the employee possesses a protected characteristic (such as disability, pregnancy, age, or religion). Although employers may be able to successfully defend a decision to dismiss or withhold wages, it is vital that a clear, lawful process be adopted to reduce risk of liability and reputational damage.
To discuss how you or your business can deal with employee hesitance in returning to the workplace, please contact our Employment Team.