Fear of catching or transmitting Covid-19 not protected under UK discrimination law

The claimant’s fear of catching Covid-19 (and passing it to her vulnerable husband and others) was not held to be a protected belief by an employment tribunal in the recent case of X v Y.

The judgment deals exclusively with whether the claimant’s fear amounted to a philosophical belief pursuant to section 10(2) of the Equality Act 2010 (Section 10).

On 31 July 2020, the claimant decided not to return to the workplace, citing health and safety reasons. Concerned about the increasing rate of Covid-19 cases, she was afraid that she’d catch Covid-19 and transmit the virus to her vulnerable husband. She said that her workplace posed a serious and imminent danger to herself and others under section 100(1)(d) of the Employment Rights Act 1996.

This was five months before the first vaccine in the UK was deployed and our knowledge of the virus was, at this early stage of the pandemic, rather limited.

While we do not know, from this judgment, what job role the claimant held, presumably it was not a role which could have been undertaken from home. In any event, her employer withheld her pay as she did not report for work.

She issued proceedings against her employer for several reasons.  As a preliminary issue to her claim, the tribunal considered whether she had been discriminated against on the grounds of her fear of Covid-19.

What does the law say on discrimination based on beliefs?

Section 10 protects employees from discrimination where they have (or don’t have) a specific religious or philosophical belief. To benefit from this statutory protection, it is well established in common law that an employee must demonstrate that their belief:

• Is genuinely held
• Is not an opinion or viewpoint based on a present state of information available at the time
• Relates to a weighty and substantial aspect of human life and behaviour
• Has a level of cogency, seriousness, cohesion, and importance
• Is worthy of respect in a democratic society and, as such, is not incompatible with human dignity and does not conflict with the fundamental rights of others

The decision

The employment tribunal found that most of these points were satisfied. However, the claimant fell down on the second hurdle; namely, that her fear of catching and transmitting Covid-19, was not an opinion or viewpoint based on a present state of information available at the time.

The employment judge found that the claimant’s fear was precisely this – an opinion based on information available at the time. Her fear of physical harm could not, therefore, be a protected belief under Section 10.

A peculiarity of this case can’t be overlooked. While the claimant pleaded her fear of Covid-19 amounted to a belief deserving of statutory protection, she also objected to the respondent’s application for the hearing to be held via video in view of the ongoing pandemic. She instead asked for the hearing to be in person (as she was concerned that the video link was not secure, and they were discussing sensitive personal information) which was granted.

In summary

Employers shouldn’t assume that this case means that employees’ fears regarding Covid-19 can be ignored or side-lined. When staff raise concerns in relation to the virus, employers should listen to those concerns, consider a review of any risk assessment(s) and contemplate what action can be taken to reassure the employee. Communication is key.

This case comes with a caveat – this judgment only relates to the preliminary issue of whether the claimant’s fear amounted to a protected belief.

While a fear of the virus has been found to not be protected by UK discrimination law, we await case law on the fear of vaccinations. Employers (unless in a sector where mandatory vaccination is now legislated – and even then, consultation will have been required) should continue to take care when handling employee concerns regarding a fear of vaccination.