In X v Y, the tribunal had to decide if an employee's fear that she might catch COVID-19 and needed to take steps to protect herself and others, amounted to a protected belief under the Equality Act 2010.
Section 10 of the Equality Act protects employees who are discriminated against because they hold (or don't hold) a particular religious or philosophical belief. To be protected, the employee must demonstrate that their belief:
- is genuinely held
- isn't an opinion or viewpoint (which is based on the information available at the time)
- relates to a weighty and substantial aspect of human life and behaviour
- has a level of cogency, seriousness, cohesion and importance, and
- is worthy of respect in a democratic society
Ms X decided not to return to her workplace on 31 July 2020 because of her concerns about COVID-19. 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 claimed that her workplace posed a serious and imminent danger to her and others under section 100(1)(d) of the Employment Rights Act 1996.
Her employers withheld her wages and she brought a number of claims in the tribunal.
The tribunal had to decide as a preliminary issue whether she had been discriminated against on the grounds of her beliefs about COVID-19.
The tribunal accepted that Ms X genuinely believed that she might catch COVID-19 and needed to take steps to protect herself and others. And, that her belief was intelligible, cogent and serious and important. It was also worthy of respect in a democratic society.
But, it said that her fear was a 'reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat' rather than a belief.
It (unsurprisingly) accepted that fear about harm cause by the virus are weighty and substantial but found that in this case, Ms X's concerns were about protecting herself and her partner. It said that this wasn't wide enough to meet that criterion.
Ms X's claim therefore failed.
This is the first case that we're aware of where an employee has alleged that fear of catching COVID-19 is a protected belief under the Equality Act.
It's far more common to see claims framed under sections 44 (detriment) and 100 (dismissal) of the Employment Rights Act. It will be interesting to see if these sorts of claims increase once people return to work in the new year. There were 183,037 new people with a confirmed positive test result for coronavirus on 29 December 2021 and it's now clear that Omicron spreads much more quickly than previous variants. And the jury is still out on whether it is less severe in most people.
Employees are usually expected to explain clearly why they believe their workplace (or possibly their commute) is dangerous and give you the opportunity to explain the steps you have in place to protect them and give you time to consider what else you can do to protect them or assuage their concerns.
Anybody who refuses to return to work on health and safety grounds must also be willing to take individual precautions to protect themselves and follow all reasonable management instructions put in place to protect them, such as wearing masks, regularly washing their hands, maintaining social distancing etc.
It's not enough for the employee to establish there is a risk - they must be able to show that the risk is serious and imminent despite anything they and their employers can do to reduce it.
Our Coronavirus updates
We're working hard to keep you up to date with legal developments around Coronavirus. We've set up a portal which includes lots of helpful articles and advice to help you.