An employment tribunal has ruled that an employee's fear of catching COVID-19 and a need to protect herself and others was not a philosophical belief for discrimination law purposes. Her claim that she suffered discrimination when her employer didn't pay her after she failed to return to work because of her concerns therefore failed.
While there are other potential health and safety-related claims that employees may raise in this context, this ruling will be welcome news to employers looking to encourage staff back to a COVID-secure workplace once current 'work from home if you can' Government guidance is lifted.
It is widely known that the Equality Act 2010 affords protection to employees and workers who suffer discrimination on religious grounds. In addition, the Equality Act also extends discrimination protection to those who hold a 'philosophical belief'.
This new employment tribunal decision is the latest in a line of claims by individuals arguing that they have suffered discriminatory treatment because of their strongly held beliefs. Tribunal decisions in this area are highly fact sensitive. Examples of beliefs that have been litigated over the years include beliefs in democratic socialism, anti-fox hunting, climate change, veganism, and that gender is immutable.
The claimant refused to return to her workplace in July 2020 on health and safety grounds. She cited concerns about the safety of her workplace, the increasing spread of COVID-19 at the time, and her fear of catching it and passing it on to her partner. She relayed these concerns to her employer who refused to accept that her concerns about returning to work were reasonable and so cut her pay.
This case – which is ongoing – included the claim that the claimant was discriminated against because of her fear of catching COVID-19, which she alleged constituted a philosophical belief.
When can something be considered a philosophical belief, as opposed to just a strongly held opinion? The following five criteria must be satisfied for a person's belief to be protected:
- The belief must be genuinely held;
- It must be a belief and not an opinion or viewpoint based on the present state of information available;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance; and
- 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's decision
The claimant in the present case failed to satisfy the second and third limbs of this test. In particular, the Tribunal was not satisfied that her fear amounted to a belief; it was instead a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. At best it was an opinion based on the present state of information available. In addition, the Tribunal found that because the Claimant's fear went no wider than a fear to protect herself and others (in particular her partner), it didn't satisfy the requirement that it be about a "weighty and substantial aspect of human life and behaviour".
What this means for employers
- While this is just a first instance judgment, this ruling will be welcome news to employers looking to encourage staff back to a COVID-secure workplace once current 'work from home if you can' Government guidance is lifted.
- However, employers should still be live to valid objections made by staff on health and safety grounds about returning to the workplace (because, for example, the workplace has inadequate ventilation or inadequate opportunities to social distance) or because the individual in question has a serious health problem. Such concerns may give rise to other types of health and safety-related employment claims.