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Simran Lalli

Article written by Simran Lalli, Solicitor, Employment department

An Employment Tribunal Judge has ruled that a fear of catching COVID-19 is not a protected belief under the Equality Act 2010. In a recent case, an employee brought a claim of alleged unlawful discrimination against her employer after taking the decision not to return to her workplace in July 2021.

The employee was concerned about contracting the virus and passing the virus to her husband who she said was at “high risk of becoming seriously unwell from COVID-19” citing she had “reasonable and justifiable health and safety concerns about the workplace surrounding COVID-19”.

In response, the employer said they would not pay this individual, a decision the employee claimed was “discrimination on the grounds of this belief in regard to Coronavirus and the danger from it to public health”. The Tribunal arranged a preliminary hearing to determine whether the claimant’s belief that “a fear of catching COVID-19 and a need to protect myself and others” amounted to a protected characteristic under the Equality Act 2010.The Equality Act 2010 affords protection to employees and workers who suffer discrimination on the grounds of a ‘philosophical belief’. The following criteria must be satisfied for a person’s belief to be protected:

  • The belief must be genuinely held.
  • It must be a belief, not an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion, and importance.
  • 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 Tribunal did not accept the claimant’s fear that contracting COVID-19 can amount to a belief that can be protected under the Equality Act 2010. The Tribunal found that the third criteria was not met, as the Claimant’s reasoning related to her own narrow circumstances and not “a belief in wider terms”. It was instead “about the claimant herself and the protection of herself and her own steps to protect others”.

The outcome of this case will be welcome news to many employers given the Government’s decision to no longer require people to work from home. However, the outcome must be taken with caution, and we would suggest that legal advice is sought before withholding pay or taking disciplinary action against an employee that refuses to return to the workplace. Employers would need to consider it on a case by case basis, giving careful thought to their duties under the Equality Act 2010 and under the Government’s working safely during Coronavirus guidance.

For further information on this ruling or for guidance on your return to work policies, please feel free to email me or contact the Employment department on 020 8858 6971.