In two recent decisions, an employment tribunal has ruled that a fear of Covid isn’t a protected belief under discrimination law, and another tribunal that an employee was fairly dismissed for breach of government lockdown guidelines.
Employees who are discriminated against because of a particular philosophical belief are protected under discrimination law if they can demonstrate that their belief is genuinely held, isn’t an opinion or viewpoint, 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.
In X v Y, a tribunal had to decide, as a preliminary issue, whether Ms X was discriminated against on the grounds of her beliefs about Covid, when she refused to return to the workplace on 31 July 2020 because she feared that she would get Covid and give it to her husband who was at high risk of being seriously unwell.
While the tribunal accepted that Ms X genuinely believed that she might catch Covid and needed to take steps to protect herself and others, it said that her fear wasn’t a philosophical belief, but a “reaction to a threat of physical harm”. In addition, Ms X’s concerns were about protecting herself and her partner, and not wide enough to meet the legal criterion. Her claim therefore failed.
In Taylor v Borough Care Ltd, Ms Taylor, a Care Home Manager, had responsibility for safety of residents and staff. On 28 November 2020, she attended a colleague’s birthday party at her colleague’s home, with other more junior members of staff whom she managed. A video shared on social media showed the staff dancing and in close contact with each other, with no social distancing or PPE, in breach of government Covid lockdown guidelines in place at the time.
The tribunal concluded that Ms Taylor was fairly dismissed. The party was a breach of government guidelines and the employer’s infection control policies. The tribunal ruled that the employer had acted reasonably in dismissing Ms Taylor, given that her actions had put vulnerable elderly people at risk.
Key Action Points for Human Resources and In-house Counsel
Although the issue before the tribunal in X v Y was whether a fear of catching Covid is a protected belief, employers will more often be faced with detriment and dismissal claims where employees allege their refusal to attend work was due to a reasonable belief they are in serious and imminent danger. In these cases, in addition to establishing risk, employees must show that the risk is serious and imminent despite any steps that can be taken to reduce it. It is possible that employers will see an increase in this type of claim as restrictions ease.