Is a fear of catching COVID-19 a protected belief under the Equality Act 2010?

Is a fear of catching Covid-19 a protected belief under the Equality Act 2010? This was a-question before the Employment Tribunal.  The case involved an individual claimant, who chose not to return to their workplace in July 2020. The Claimant alleged their failure to return was because of their reasonable and justifiable safety concerns in relation to Covid-19. Specifically the individual claimed they had a fear of catching the virus and passing it to a high risk individual (her partner). Due to the Claimant’s absence, her employer withheld her wages. The Claimant subsequently issued a claim against her employer for discrimination on the grounds of being a protected belief.

For a belief to amount to a protected belief under the Equality Act 2010, there are certain criteria which must be satisfied. These include that the belief must: 1) be genuinely held; 2) be more than a viewpoint or opinion; 3) be weighty and substantial; 4) have a certain level of cogency; and 5) be worthy of respect in a democratic society.

The Tribunal was satisfied that the Claimant’s fear ticked all but one of the five boxes for establishing a protected belief under the Equality Act 2010. It held that the Claimant’s fear did not amount to a belief – rather that it was a reaction to a threat of physical harm and the need to take steps to reduce that threat. The Tribunal went on to say that it could also be described as a widely held opinion and that whilst that opinion might be reasonable, the avoidance of crowded places (such as the work place), it did not constitute a belief.

OPINION

Although, this is an Employment Tribunal decision and so open for another Tribunal to differ, it may not be the end of the issue. This case also includes a whistleblowing element which will continue to be heard. 

Employers should be aware of risks associated with whistleblowing, unfair dismissal and detriments in respect of employees raising health and safety concerns.  Some staff who are particularly vulnerable may have additional concerns which raises additional risks for employers, including disability discrimination. Employers and employees should communicate and discuss issues which arise in respect of return to work or health and safety concerns to find a solution.

For help and advice on health and safety or return to work plans, please speak to us – [email protected].