A fear of catching Covid-19 and a need to protect oneself and others does not amount to a philosophical belief for the purposes of section 10(2) Equality Act 2010

When the rest of us were wondering what day it was, Manchester Employment Tribunal were busy in the period between Christmas and New Year promulgating an important judgment in an interesting case looking at whether an employee’s genuine concern about contracting Covid-19 in her workplace and passing this on to vulnerable family members was sufficient to qualify for protection as the basis for a complaint of discrimination.

The employee in question informed her employer on 31 July 2020 that she would not be returning to the workplace on the grounds of health and safety, in particular a fear that she would get Covid and pass it on to her partner who was at high risk of getting seriously unwell if they contracted Covid. The employer did not believe that the Claimant’s stated concerns were genuine and withheld the employee’s pay for the period that she was AWOL, prompting the Claimant to pursue a complaint of discrimination (the protected characteristic being religion or belief).

The key issue to be determined by the Tribunal at a preliminary hearing was whether the Claimant’s belief, which she confirmed at the hearing, was specifically a fear of catching Covid-19 and a need to protect myself and others met the definition of philosophical belief as set out in the EAT case of Granger plc v Nicholson (‘the Granger test’). The Granger test consists of 5 criteria.  In order to qualify for protection under the Equality Act, the belief must meet all 5 of those criteria before a tribunal will consider whether there was, in fact, any discriminatory treatment by an employer.

In the Tribunal’s opinion, the Claimant’s belief met three of the criteria in that it was a genuine concern, which had sufficient cogency, seriousness and cohesion and was worthy of respect in a democratic society, but ultimately it failed to satisfy the following criteria:

• It was not a belief, but rather a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. That the Claimant’s viewpoint may have been widely accepted and popular (in the sense of being a commonly-held view at that time) did not make it a belief for the purpose of section 10 EqA.
• It was not sufficiently weighty or substantial since the Claimant’s fear was about her and her protection, and how she might protect others. The concern went no wider than that; it did not, for example, extend to a fear about the health and safety of her colleagues, presumably because, unlike her, they were content to return to the workplace and did not share the same viewpoint (either at all or to the same degree).

We know from our own experience that employers faced a myriad of people challenges throughout 2021 with the various lockdowns and fluctuating Government guidance, coupled with employees concerns and sensitivities to working from home and in the office.  And, it looks like the same challenges are likely to continue well into 2022. The judgment in this case is helpful and should provide employers with additional confidence that they’re unlikely to face a complaint of discrimination if they choose to withhold pay if an employee unreasonably refuses to attend work, citing health and safety reasons when seemingly fit and able to do so.

On the other hand, this case does not give carte blanche to employers to withhold pay or initiate disciplinary action in all cases where Covid-related concerns are cited as the reason for an employee staying at home.  It is important to remember that this was not a case involving a dismissal (either by the employer or a constructive dismissal prompted by the employee’s resignation) – it was decided on a very specific and narrow point around whether the Claimant’s fear of contracting Covid could amount to a philosophical belief. The basis for individuals’ concerns should still be explored carefully and sensitively and disciplinary action or action akin to disciplinary action should only be taken after the benefit of specialist legal advice.