Fear of catching Covid-19 not a philosophical belief for purposes of Equality Act, employment judge rules

A claimant’s belief in a fear of catching Covid-19 and a need to protect herself and others, did not amount to a philosophical belief for the purposes of section 10(2) Equality Act 2010, an Employment Tribunal judge has ruled.

In X v Y the claimant took the decision in July 2020 not to return to the workplace on the grounds of health and safety. In a statement to the tribunal she said that she had a genuine fear of getting the virus herself and a fear of passing it on to her partner, who was at high risk of getting seriously unwell from Covid-19.

She was told by her employer that she would not be paid, and subsequently had her wages withheld. In her statement she claimed that this was “discrimination on the grounds of this belief in regard to Coronavirus and the danger from it to public health. This was at the time of the start of the second wave of Covid-19 and the huge increase in cases of the virus throughout the country.”

In X v Y Employment Judge Leach applied the five criteria set out in Granger plc v. Nicholson [2010] IRLR 4 to address the preliminary issue of whether her belief fell within the terms of section 10 of the Equality Act 2010:

“(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock v. Department of Constitutional Affairs [2008] IRLR 29, an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) 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 (paragraph 36 of Campbell and Cosans v. UK [1982] 4 EHRR 293 and paragraph 23 of Williamson v. Secretary of State for Education and Employment [2005] 2 AC 246).

On criterion (i), the judge said: “It is not disputed for the purposes of determining this preliminary issue, that the claimant has a genuine concern or fear that she might catch Covid-19 and that she needs to take steps to protect herself and others.”

On criterion (ii), Employment Judge Leach did not find that the claimant’s fear amounted to a belief. “Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another,” the judge said.

“It can also be described as a widely held opinion based on the present state of information available that taking certain steps, for example attending a crowded place during the height of the current pandemic, would increase the risk of contracting Covid-19 and may therefore be dangerous. Few people may argue against that. However, 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 purposes of section 10.”

On criterion (iii) the judge reiterated that he did not accept that the claimant’s fear of contracting Covid-19 amounted to a belief.

He said: “Fears about the harm being caused by Covid-19 are weighty and substantial. They are certainly not minor or trivial. They are about also aspects of human life and behaviour.

“In her submissions [counsel for the respondent] disputed that this criterion was met in that the claimed belief was a time specific reaction to her own concerns. I agree that it is time specific, in the sense that the fear will only last as long as dangers caused by the current pandemic remain present although I do not accept that (in itself) avoids this criterion being met.”

Judge Leach also noted that whilst the claimant did explain her fear in terms of returning to the workplace, he understood her fear to be wider than this and that it impacted on the claimant’s decisions about attending other places.

“However, I do agree with [counsel for the respondent] that it is about the claimant herself and the protection of herself and her own steps to protect others (principally her partner). The claimant does not rely on a belief in wider terms than this and for this reason I find this criterion is not met.”

In relation to criterion (iv), the judge described the fear of contracting Covid -19 and the claimant’s requirement to take steps to avoid harm to herself and others, as “serious and important”. He also accepted that the claimant’s belief was cogent and that therefore this was met.  

On criterion (v) Judge Leach said the respondent “sensibly” did not dispute that the claimed belief met this criterion.

The judge concluded that the claimed belief did not meet the 5 Nicholson criteria and was not a philosophical belief with s10(2) EQA.