In this article, Chris Dobbs looks at a recent case where a claimant failed in her claim that her views on covid amounted to a belief.
Chris details the ins and outs of the case and provides advice for employers going forward.
A bit of a recap
Here I provide a bit of a recap of health & safety laws, their use over the pandemic and the relationship between covid and dismissal…
Health and Safety, Covid and Employment
During the course of the pandemic, many workers have relied on health and safety laws or government guidance to encourage their employers to adapt the workplace or implement working from home measures.
In August last year, I wrote about the previously rarely-used sections 44 and 100 of the Employment Rights Act and their role in staff being protected from dismissal due to covid precautions.
Dismissals relating to Covid
Since then, various cases have been decided on whether or not dismissals in connection with covid were fair and lawful.
Tribunals have gone both ways so far in these decisions any much depends on the particular circumstances.
We’re going to cover these circumstances in detail in our upcoming February Forum. If you’re interested in this forum, you can learn more here.
A novel case
In one currently novel case heard in Manchester November 2021, an unnamed Claimant failed in her claim that her covid views amounted to beliefs under section 10 of the Equality Act.
Both parties were anonymised in the case of X v Y with the Claimant representing herself at the preliminary hearing to determine the matter of her belief.
This case is going to be the focus of this article.
What were the claimant’s beliefs on covid?
The Claimant set out in her witness statement a clear summary of what she argued amounted to a belief.
In this she referred to her “reasonable and justifiable health and safety concerns about the workplace” as well as being “worried about the increasing spread of the virus”.
She also mentioned her concerns about passing the virus on to a partner and “protected disclosures” she had made about the Respondent’s covid compliance.
The Tribunal judgment summaries her belief as what was given by the Claimant to being asked to state it simply: “A fear of catching Covid 19 and a need to protect myself and others”.
The facts of the case
The judgment deals solely with the question of the Claimant’s belief.
However, it is clear from the content and other coverage of the case that the Claimant refused to go in to work and was accordingly not paid.
It is likely that she has brought separate claims for whistleblowing, health and safety detriments as above and, if she was dismissed, for unfair dismissal on the same grounds.
What did the tribunal find?
The Employment Judge applied the test established in Grainger plc v Nicholson. The same test was used in 2019 to determine the status of ethical veganism and in the case of Maya Forstater in respect of gender-critical views.
He ruled that the belief as expressed by the Claimant was not capable of being a belief but was instead a ‘reaction to a threat… and the need to take steps to avoid or reduce that threat’.
Why did the belief fail?
Employment Judge Leach did also identify why the belief would have failed on other aspects of the test.
Including that while it may be a broadly held view, the Claimant was relying on her specific belief and desire to protect herself.
This meant that it did not pertain to ‘weighty and substantial aspects of human life and behaviour’.
An Employment Solicitor’s View
Chris Dobbs, Employment Solicitor at Frettens, said: “Employers may be able to breathe out as a result of this judgment but only slightly.
It is not an especially unsurprising result when you consider that ‘belief’ is used in the Equality Act alongside ‘religion’.
A belief of the Claimant’s kind was unlikely to be comparable in the circumstances.”
What other claims should employers be careful of?
Chris continues: “There are other claims which can have just as serious consequences for an employer who dismisses or fails to pay staff for refusing to work in potentially dangerous environments.
So, careful thought should always be given as to exactly what issue a staff member has and how it could be remedied before drastic action is taken.”
Employment law advice and guidance: Stay up to date
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Employment solicitors in Bournemouth, Christchurch and Ringwood
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