The Employment Tribunal in Manchester has delivered what is thought to be one of the first decisions on Covid and whether a fear of catching it is protected under the Equality Act 2010 (“the Act”).
The Facts
In X v Y (reported 22 December 2021) the claimant brought a claim that she had been discriminated against when her employer refused to pay her if she did not return to work during the pandemic. The question for the Tribunal at a preliminary hearing to decide was whether a fear of catching Covid and passing it on to her clinically vulnerable partner could amount to a philosophical belief under the Act.
The Law
For a philosophical belief to have protection under the Act there are certain criteria which must be satisfied:
- The belief must be genuinely held;
- It must be a belief and not an opinion or viewpoint based on the present state of available information;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must have a 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 Decision
Whilst the Employment Tribunal found that:
- The Claimant genuinely held the belief;
- Fears about the harm caused by Covid 19 are weighty and substantial and are about aspects of human life and behaviour;
- The belief held is cogent; and
- The belief was worthy of respect, not incompatible with human dignity and didn’t conflict with the fundamental rights of others
it still failed to be a philosophical belief for the following reasons:
The judge described it as “a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat” and said that a fear did not amount to a belief.
He also said that it is time specific i.e. a reaction to her own concerns which will only last as long as the dangers from the pandemic remain.
Further the concern only related to herself and the fear of passing it on to her partner, not more widely in relation to society as a whole.
What next?
As the decision was only published 22 December we will have to wait to see whether or not an appeal is lodged. The Claimant had also claimed that she had made a protected disclosure by raising health and safety concerns and therefore there are still other aspects of this case to proceed.
What is interesting however is that the decision is that a person’s “fear” arising from the pandemic is not capable of being a belief where it related to herself and her partner. Whether it would have been held to be protected had her fear been wider than that and for example of for society in general, was not argued.
As we have seen over the last 21 months, our current understanding of Covid 19 compared to what we first understood back in March 2020 has evolved and in many areas changed substantially as the scientific understanding of the virus has developed. That in itself may mean that it would never amount to a philosophical belief as it is based on the present state of available information. However, this is unlikely to be the only case we see in relation to Covid-19 and the Equality Act. Indeed the situation may however be different for example, if someone holds a “belief” against vaccination and we are yet to see such a case. These cases always take time to make their way through the Tribunal system, and even more so given the delays caused by the pandemic itself, so it is likely more cases will follow.
Insight from Noele McClelland, Partner in Thorntons specialist Employment Law team. For more information contact Noele or any member of the Employment team on 03330 430350.
