Covid-19 – is a “fear” of catching the virus a good reason not to attend work?

Steve Conlay reviews a recent employment tribunal case where an individual attempted to show that a fear of catching Covid-19 and a need to protect herself and others amounted to a philosophical belief.

With current Government advice remaining that employees should work from home where possible, employees are understandably once again raising concerns about attending the workplace.

Throughout the first and second waves of Covid-19, we covered some of the first cases relating to individuals complaining of Covid related health and safety breaches https://www.bpe.co.uk/news-and-events/2021/04/covid19-can-an-employee-refuse-to-attend-work/ as rationale not to attend the workplace. It is with some interest, therefore, that we have only now seen an argument on philosophical belief as a reason for not attending work.

For those of you who are unfamiliar with philosophical belief claims, I have previously covered the topic here https://www.bpe.co.uk/news-and-events/2019/10/can-you-discriminate-against-vegetarians-or-vegans/ which includes a breakdown on exactly what a philosophical belief is and provides case examples on vegans, the poppy and Scottish independence.

In summary, for an individual to successfully argue that their opinion counts as a philosophical belief, and therefore gain protection under S.10 Equality Act 2010, they must satisfy the following test, arising from the case of Granger PLC v Nicholson;

1. The belief must be genuinely held;
2. It must be a belief, 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.

In the most recent case of X v Y, the Claimant, X, stated that her “fear of catching Covid-19 and a need to protect herself and others” should satisfy the aforementioned test and therefore offer her protection under the Equality Act. Should this be the case, then the employer had discriminated against her for withholding wages for her failure to attend the workplace.

In consideration of the Claimant’s claims, Employment Judge Leach went through the test line by line and provided findings for each test. In the judgment, a copy of which can be found below, Employment Judge Leach found that three of the five tests were satisfied. It is of course undeniable that Covid-19 attracts a certain level of cogency, seriousness, cohesion and importance (4) and also that it was worthy of respect in a democratic society (5). In addition, it was not disputed that the Claimant had genuine concern that she may catch Covid-19 (1).

However, in order to be successful, the Claimant must satisfy all five tests, and this is where X became unstuck. When considering whether the Claimant’s position was based on a belief, and not simply an “opinion or viewpoint based on the present state of information available”(2) the Claimant had difficulty in convincing the judge. In his findings, Employment Judge Leach stated that “I do not find that the claimant’s fear amounts to a belief. Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another… However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10”. In addition, Employment Judge Leach believed that the Claimant’s belief was not wide enough to be a substantial aspect of human life and behaviour (3) and her actions related solely to her and her partner.

As the Claimant could not satisfy all five tests set out in Granger PLC v Nicholson, she did not attract protection afforded by the Equality Act for a philosophical belief and therefore it could not be found that she had been discriminated against.

The case is good news for employers, however it should be noted that it is a first instance decision and therefore it does not need to be followed by other courts and tribunals. Employers should take each case on its own merits and not simply see this as carte blanche to withhold wages or discipline individuals for refusing to attend the workplace. Whilst X was unsuccessful in this claim, other individuals have been successful in refusing to return to the workplace where there is a danger to their health as shown in the cases above.

For the time being, it is always best to ensure that risk assessments are regularly carried out and made available to employees and also that government guidance is followed where possible.

A copy of the judgment can be found here.

For information and support in relation to employees not attending the workplace due to COVID or any other Employment matters, contact Steve Conlay (steve.conlay@bpe.co.uk 01242 248444).

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.