This question was considered by the Employment Tribunal in the recent case of X v Y. In a decision that will be welcomed by employers, the tribunal held that such a fear is not a protected belief under the Equality Act 2010.

The facts of the case

The claimant brought proceedings against her employer for discrimination after she chose not to return to work in July 2021 with the result that her employer had stopped paying her.

The claimant argued her decision not to return to work was due to her “reasonable and justifiable health and safety concerns about the workplace surrounding COVID-19”. Further, the claimant made specific reference to her fear of catching the virus herself and the danger this could have in relation to her passing it to her partner, whom she said was at high-risk of being seriously unwell if he caught COVID-19. She claimed that her concerns amounted to a protected belief under the Equality Act 2010 and that she had suffered a detriment because of holding that belief, namely the stopping of her salary.

The tribunal’s decision

In deciding whether her concerns amounted to a protected belief, the Employment Tribunal referred directly to the five criteria set out in an earlier case of Grainger PLC and others v Nicholson, which must all be satisfied to meet the definition of a ‘belief’ under the Act, namely:

1. The belief must be genuinely held
2. It must be a belief and 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.

The tribunal accepted that the Claimant’s alleged belief was genuinely held, cogent and worthy of respect in a democratic society, essentially passing 3 of the 5 tests above.

It was the second and third criteria which cased issues for the claimant’s case. The tribunal did not accept that the claimant’s belief met these criteria, because they felt her concerns were “a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat” so were more akin to a viewpoint or opinion based on the information currently available to her. Further, the threat was “time specific, in the sense that the fear will only last as long as dangers caused by the current pandemic remain present” and so was too narrow to meet the criterion of being a weighty and substantial aspect of human life and behaviour.

What does this mean for employers?

This case is the first of its kind, where an employee has sought to establish a protected belief under the Act. In a similar case however a tribunal found that a requirement to attend work during the pandemic amounted to indirect sex discrimination as it placed women and the claimant in that case at a particular disadvantage compared to men because women have greater childcare responsibilities, and the requirement could not be objectively justified on the facts.

What is clear is arguments like those put forward in X v Y may become more frequent as infection rates continue to rise. What will be important in any defence of such arguments is that employers encourage employees back to work once the current working from home guidance is lifted by taking reasonable steps to reduce the spread of the virus in the workplace and protect their employees as far as possible.

This could include:

• Having safety measures in place such as hand sanitiser and PPE and encouraging social distancing and mask wearing where possible
• Being ready to listen to any concerns employees have in relation to returning to work or COVID-19 safety concerns and addressing these wherever possible
• Ensuring the position on COVID-19 related sickness absence is clear and available to employees and
• Ensuring policies in relation to sickness absence and holidays are up to date.