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X v Y

An employee’s fear of catching COVID-19 did not amount to a protected philosophical belief under the Equality Act.

Background

In July 2020, Ms X failed to return to work. She told her employers 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 from COVID-19. She also claimed that her workplace posed a serious and imminent danger to her and others under s. 100(1)(d) of the Employment Rights Act 1996. In response, her employer withheld her wages whilst she remained off work. She brought various tribunal claims. As a preliminary issue, the tribunal had to decide whether she had been discriminated against on the grounds of her beliefs about COVID-19. Her asserted belief was ‘a fear of catching COVID-19 and a need to protect myself and others’.

Tribunal decision

Her claim was dismissed.

The tribunal referred to the five-part test in Grainger v Nicholson – that to qualify as a ‘philosophical belief’ under s. 10 of the Equality Act 2010, the belief must satisfy the following five criteria:

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, and
5. it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

The tribunal accepted that Ms X genuinely believed that she might catch COVID-19 and needed to take steps to protect herself and others, that her belief was intelligible, cogent and serious and important, and was also worthy of respect in a democratic society. However, it also held that:

• her fear did not amount to a belief but instead was ‘a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat’, and
• that her asserted belief was about the protection of herself (and her partner) and did not go beyond this - that wasn’t wide enough to satisfy criterion 3 of Grainger

Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/2413947_2020.pdf

Comment

This is a preliminary point as Ms X still has arguments under s. 100 (1)(d) of the Employment Rights Act 1996, which are claims that she was in serious and imminent danger and was therefore allowed to leave the workplace for health and safety reasons and should not be subjected to a detriment for doing so. However, as we have seen from other cases, if the employer has done all they reasonably can to provide a safe place of work then this claim is also unlikely to succeed. It is however interesting to note that although Ms X did not want to attend work, she insisted on an in person hearing at the employment tribunal despite being given the opportunity of it being by video link!!