Fear of catching COVID-19 and the Equality Act 2010
In X v Y, the Employment Tribunal (ET) said that X’s fear of catching COVID-19, and her belief that she needed to protect herself and her partner from catching it, was not a protected belief for the purposes of the Equality Act 2010.
After the first national lockdown was lifted in July 2020 X decided not to return to work on the grounds of health and safety connected to COVID-19. She was also afraid of contracting the virus herself and passing it on to her vulnerable partner. She explained her position to her employer and said she would not be returning to work. As a result her employer stopped paying her wages.
X sued her employer for various failures including that her employer's action was discrimination on the grounds of her protected belief. She said her protected belief was "a fear of catching COVID and a need to protect herself and others".
Religion or belief is a protected characteristic under section 10 of the Equality Act 2010. This means that workers are protected from discrimination in employment on the grounds of their religion or their religious or philosophical belief. However, only philosophical beliefs which meet a certain standard are protected.
In order to be covered, a philosophical belief must:
- be genuinely held;
- be a belief and not a mere opinion or viewpoint based on the present state of information available;
- concern a weighty and substantial aspect of human life and behaviour;
- have a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.
In the Employment Tribunal
The ET decided that the first, fourth and fifth criteria were met, but the second and third were not. For the second criteria, the ET said that X’s fear of catching COVID-19 was not a belief. It was an instinctive reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. In addition, her view that certain actions (e.g. attending a crowded place) would increase the risk of her contracting COVID, was an opinion based on the information available at the time.
For the third criterion, the ET said that fears about the harm caused by COVID-19 are weighty and substantial and not minor or trivial. They also concern aspects of human life and behaviour. The fact that such a fear could be descried as time-specific (i.e. for length of the pandemic) would not, in itself, mean this criterion could not be met. However, in X’s case, her fear concerned herself and her partner only - there was no wider concern for others. For these reasons X lost her claim for discrimination based on religion or belief.
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