Was British Airways Pilot's sacking fair after refusing to wear mask?

It seems incredible now that three years ago we were being introduced to the three-tier system of lockdown and there was a parliamentary vote on keeping the “rule of six”.

It is a sign of the impact of the pandemic that cases are still making their way through the Tribunal decision and being decided this far on.

In his latest article, Employment Associate Chris Dobbs looks at the latest outcome of this in a case where a British Airways pilot was dismissed after refusing to wear a mask on the basis of a protected belief.

Case Background

The Claimant, Mr Burch, said that he had formed the belief that nobody else in human history had worn face masks in this way and that if a cloth covering could stop the transmission of infectious illnesses, it would have been something humans had done for much longer.

He claimed that being required to wear a mask caused him stress which led to his absence from work. The stress and anxiety, he claimed, were also underpinned by his fear that the government’s reaction was over-reaching.

What did the tribunal say?

The judge in the case had to decide whether Mr Burch’s belief was capable of being afforded protection under the Equality Act and applied the standing case law test.

The Tribunal concluded that Mr Burch’s beliefs would have failed on multiple grounds under the relevant test. In the first instance, the judge was not convinced that Mr Burch’s views were an actual belief rather than a currently held opinion.

Even if that were not the case, the judgement goes on to clarify that the belief would fail on almost every other element of the Grainger criteria.

The discrimination claims were therefore dismissed in their entirety.

An Employment Solicitor’s View

Chris Dobbs said: “Although this case is specific to mask-wearing during the pandemic, it does highlight the difficulty a Claimant can face in satisfying the legal test for a ‘philosophical belief’.

The criteria used are long-established and the onus is very much on the Claimant to show that their belief meets each test. It must be an actual belief that is genuinely held about a significant aspect of their life and not just a current viewpoint based on opinion or available information.

Even where a Claimant can show that they hold a belief, the final stage of the test is a balancing act between the holding of that belief and whether it is compatible with the rights of others.”

What are the implications for employers?

“Beliefs which directly conflict with the rights of others, may fail on this ground even where they are clearly and genuinely otherwise held.” Chris continues.

“That does not mean employers should feel safe from belief-based cases, however. Novel or controversial views are often deemed to be protected and where that protection exists, the claim can then run as a discrimination case.”

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