Unlawful discrimination claim: Did a claimant’s fear of catching Covid-19 and need to protect others amount to a philosophical belief?

January 21st, 2022

No held the Employment Tribunal in X v Y.  In this case, X is the employee and Y the employer.

X informed Y that she would not return to the work on the grounds of health and safety. She stated that she had a genuine fear of catching Covid-19 and a fear of passing it on to her husband who was at high risk.

X was informed she would not be paid and that Y did not accept that she had a reasonable belief that returning to work put her or her husband in serious and imminent danger.

X brought an unlawful discrimination claim in the Employment Tribunal (ET) based on her belief. At a preliminary hearing the ET considered whether X’s belief i.e., a fear of catching Covid-19 and a need to protect herself and others, fell within section 10(2) of the Equality Act 2010 (EqA).

Section 10(2) of the EqA defines belief as “any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief”.

The ET, applying Granger plc v Nicholson, considered the following five criteria for establishing a protected belief:

  1. The belief must be genuinely held.
  2. It must be a belief, not an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. 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.

All 5 criteria must be satisfied for the belief to be protected.

The ET did not agree that X’s fear amounted to a belief for the purpose of section 10(2) EqA. The ET held that her fear failed to satisfy criteria 2 and 3 (as set out above). The ET reasoned that “a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purpose of section 10”. Further while X held this fear, it was limited and time specific in that X sought to protect herself and her husband and that her fear may only last as long “as the dangers caused by the pandemic are present”.

You can read the full judgment here.

This case update was written by Jo Sinclair, Solicitor at didlaw.

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