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Shortly before Christmas on 22 December 2021, an Employment Tribunal published its judgement in the case of X v Y . Whilst as a first instance decision it is not binding, the case offers an interesting insight into how the COVID-19 pandemic interacts with employment law.
17 January 2022
Case Study
In this case, the claimant had brought a claim for discrimination based on the protected characteristic of religion or belief. A preliminary hearing was held in order to determine whether the belief the claimant relied on fell within the definition set out in Section 10 (religion and belief) of the Equality Act 2010 (EqA), such that the claimant should be afforded protection from discriminatory treatment.
Section 10 EqA states that “belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.
In particular, the leading case of Granger plc -v- Nicholson (Nicholson) set out very clear guidance on determining whether a belief met the definition in section 10 EqA. However, the EAT in Nicholson found that the belief must be:
In X -v- Y, the claimant took the decision not to return to the workplace on 31 July 2020 in light of her concerns around COVID-19. The claimant was worried, in particular, about the increasing spread of the virus and that she may contract it herself or pass it on to her partner who was deemed to be clinically extremely vulnerable. When asked to state precisely what her belief was by the tribunal, the claimant confirmed it was “a fear of catching COVID-19 and a need to protect myself and others”.
Case Study
Applying the Nicholson test, the tribunal found that the claimant had a genuine concern that she might catch COVID-19. This concern did not, however, amount to a belief attracting protection under section 10 EqA.
The tribunal held that the claimant’s concern was simply 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. For that reason, the claimant was not afforded protection from discriminatory treatment as a result of her pleaded belief.
In spite of this finding, the tribunal went on to consider whether, if the claimant’s concerns had amounted to a belief, they would relate to a weighty and substantial aspect of human life and behaviour. The respondent disputed this criterion was met on the basis that the claimant’s concerns were a time-specific reaction to her own concerns. The tribunal noted that whilst that may be the case, in certain circumstances time-specific reactions may still amount to weighty and substantial aspects of human life and behaviour. However, as the claimant relied on her concerns in relation to just herself and her partner, the tribunal found that the concerns did not meet this aspect of the Nicholson test.
The tribunal did, however, find that the claimant’s concerns, had they amounted to a belief, would have been sufficiently cogent as to attract protection and it was not disputed that the concern was worthy of respect in a democratic society.
Certain media outlets have reported this case using headlines that reference staff being unable to rely on fears of catching COVID-19 to refuse to attend the workplace. This is slightly misleading. Whilst fear of catching COVID-19 may not be a protected philosophical belief under the EqA, an employee may still be able to succeed in a number of other claims relying on concerns over COVID-19. For instance, if they took appropriate steps due to their reasonable belief they were at imminent risk of serious danger and were subsequently subjected to a detriment or dismissed by their employer, they may be able to bring a claim under sections 44 and 100 Employment Rights Act 1996 respectively.
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