Is refusing to come to work for fear of catching covid a Philosophical belief and therefore protected by the Equality Act?
No, held the Employment Tribunal in the case of X v Y.
This case involved an employee who took the decision in July 2020 to not return to work on the grounds of health and safety as they were afraid of catching Covid-19 and passing it to their partner. The employer therefore withheld her wages. X therefore took their employer to the employment tribunal alleging that this action was discrimination on the grounds of this belief in regard to Coronavirus and the danger from it to public health.
The Employment judge applied the five criteria set out in Granger plc v. Nicholson  IRLR 4 to address the preliminary issue of whether her belief fell within the terms of section 10 of the Equality Act 2010:
- The belief must be genuinely held.
- It must be a belief and 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, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Whilst there was no dispute that the belief was genuinely held (i), it was found that this was a reaction to a threat of physical harm based on the present state of information available about Covid-19, and therefore not a belief for the purposes of section 10 (ii). As such no matter how genuine or weighty the opinion (iii), no matter how cogent, serious and important the opinion (iv), and no matter how worthy of respect the opinion was in a democratic society (v), it could not amount to a belief.
Under the Equality Act 2010, an employee is protected from discrimination because they hold (or do not hold) a particular religious or philosophical belief. This is a welcome clarification where employees are motivated by concerns regarding Covid-19 as to if and when these fears become protected characteristics of religion and belief. It is also a useful reminder as to the steps to be considered by employers where allegations of discrimination on the grounds of religion and belief are raised. However, it did not consider whether any other beliefs by an employee would amount to discrimination.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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