Employment tribunal considers Coronavirus discrimination claim
The Equality Act 2010 protects from discrimination based on religion or belief. This includes major recognised religions, as well as deeply held philosophical beliefs like atheism. More recently ethical veganism was found to be a protected belief.
Could being forced back into the workplace be considered discrimination if a person has a deeply held fear of catching Covid-19? An employment tribunal considered this case and decided that it doesn’t meet the criteria of being a philosophical belief under the Equality Act, but actually got quite close.
Employment tribunals consider the meaning of philosophical belief as having to meet five tests, known as the Nicholson criteria, based on the judgement in the case of Granger plc v. Nicholson 2010. These criteria mean the belief must be genuinely held, not be a viewpoint or opinion, must be weighty and substantial, must have a certain level of cogency and importance, and must be worthy of respect in a democratic society.
The claimant made a decision in July 2020 not to return to their workplace. They stated they had reasonable and justifiable safety concerns regarding Covid-19, including a fear of catching the virus and fear of passing it to their partner who is at a high risk of getting seriously unwell.
The employer rejected the health and safety fears, and withheld their wages as a result. The claimant stated this was discrimination on the grounds of belief. The belief, they stated, is “a fear of catching Covid-19 and a need to protect myself and others.”
The employment tribunal did not dispute the fact the concern was genuinely held. But the fear of catching Covid-19 did not amount to a belief, rather it is a reaction to a threat of physical harm. This, the tribunal found, amounted to a widely held opinion. The opinion may be reasonable, but how to reduce harm, such as by avoiding crowds or a workplace, does not itself constitute a belief.
The tribunal did agree the opinion was weighty and a substantial aspect of human life and behaviour, but decided that such fear will only last as long as dangers caused by the pandemic remain present. The tribunal also found the belief is serious and important, cogent and worthy of respect in a democratic society.
Ultimately however, the belief was not held to meet the five Nicholson criteria and therefore is not a philosophical belief under the Equality Act 2010.
What is interesting about this decision is that the belief appears to have met the majority of the criteria. Where it failed is that the claimant did not rely on a belief in wider terms. It is specific to protecting them and their partner. The belief is also considered to be a reaction to the threat of physical harm and the need to take steps to avoid or reduce that threat. This reaction, the tribunal said, is instinctive to most, if not all people.
As more people return to physical workplaces despite the ongoing, and by some metrics a worsening pandemic, there is likely to be an increase in friction in regards to workplaces and safety concerns. This case was based on discrimination, as it is likely the employer took all reasonable health and safety precautions they are required to do.
A different way of considering the same case would have been indirect discrimination based on disability. The claimant’s partner was at a higher risk of becoming ill if they caught Covid-19, and if they also met the definition of disabled, then forcing the claimant to potentially be exposed to Covid-19 may have resulted in a case of disability discrimination. However the claimant stated fear of catching Covid-19 is their belief, but the tribunal did not agree this met the test of a protected characteristic.
For more on the impact of Covid-19 on employment law, download our free guide to Employment Law in the Post-Covid Workplace.
