Refusals to Attend the Workplace for fear of Covid-19

Even as we welcome in 2022, the fear and uncertainty brought about by Covid-19 and its variants is still prevalent and influences decision making throughout the economy. In the face of copious amounts of misinformation and conflicting messages many employees continue to make difficult decisions about the perceived and actual risks to their health and the safety of their loved ones when attending the workplace.

This month, a Mancunian Employment Tribunal ruled that a refusal to attend the workplace due to a fear of contracting Covid-19 is not a protected belief and an employer can legitimately deduct the wages of an employee who refuses to return to the workplace for this reason, without this constituting unlawful discrimination.

On 31 July 2020, well before the advent of vaccinations, a female employee, referred to in the judgment as “X”, refused to return to the workplace as she was concerned that she would contract Covid-19. Her employer, “Y” (also anonymised in the judgment) withheld her wages. X claimed that her concerns amounted to a philosophical belief and that she was protected under the Equality Act 2010 from suffering a detriment by reason of that philosophical belief. She summarised her belief as “a fear of catching Covid-19 and a need to protect myself and others” (X’s husband was at high risk of getting seriously unwell from Covid-19). As she had suffered financial detriment by the refusal to pay her whilst she refused to return to the workplace, she argued she had suffered discrimination.

A religion or a belief is a protected characteristic under section 4 of the Equality Act 2010. In X v Y the Tribunal was required to determine whether a fear of contracting Covid-19 amounted to a protected philosophical belief warranting protection from the Equality Act 2010.

Both parties referred the Tribunal to the 5 part test to establish if one holds a philosophical belief set out in Grainger plc v. Nicholson [2010] IRLR 4, which states that the belief must:

1. be genuinely held
2. be a belief and not an opinion or viewpoint based on the present state of information available
3. be a belief as to a weighty and substantial aspect of human life and behaviour
4. attain a certain level of cogency, seriousness, cohesion and importance
5. be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

X’s claim failed on the basis that grounds 2 and 3 of the test had not been met. Her refusal to return to work was in fact “a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat”. However, as the Tribunal noted,

“Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another… However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of [the Equality Act]”.

The Tribunal determined that it could be described as,

“…a widely held opinion based on the present state of information available that taking certain steps, for example attending a crowded place during the height of the current pandemic, would increase the risk of contracting Covid-19 and may therefore be dangerous.”

As such, it did not satisfy the second limb of the Grainger test.

Further,  whilst the Tribunal accepted that fears about the harm being caused by Covid-19 were ‘weighty and substantial’, it was determined that this fear was about the Claimant herself and the protection of herself and her own steps to protect others (principally her husband) and therefore the ‘belief’ did not satisfy the third limb of the Grainger test.

As the belief was therefore not a philosophical belief, the Tribunal held that it did not attract the protection of the Equality Act 2010 and her employer was entitled to deduct wages for the hours that X had failed to work.

Interestingly, the judgment does not examine the possible impact of sections 44 and section 100 of the Employment Rights Act 1996 (ERA 1996).

Section 44 of the ERA 1996 protects the employee from being subjected to any detriment by their employer on the grounds that the employee (i) in circumstances of danger, (ii) which the worker reasonably believes to be serious and imminent (iii) which s/he could not reasonably have been expected to avert, (iv) s/he left (or proposed to leave) or refused to return to his or her place of work or where (i) in circumstances of danger (ii) which the worker reasonably believed to  be serious and imminent (iii) s/he took appropriate steps to protect himself or herself or other persons from the danger.

Section 100(1)(d) also makes any dismissal on this basis unfair.

To succeed in such a claim, what are appropriate steps for the worker to take is judged by reference to all the circumstances including the workers knowledge and the facilities and advice available at the time and where the employer is able to show that it was so negligent for the worker to take the steps that s/he took that a reasonable employer might have treated them as the employer did.

It is likely that the reason Section 44 was not considered in this case was because X, a litigant in person, brought her claim only on the basis of her conduct arising from her ‘philosophical belief’ and the timing of her refusal to return to work came after the easing of restrictions and removal of total lockdown in the UK in the summer of 2020. Additionally, X was not dismissed for her refusal and there is no suggestion in the judgment that she resigned making consideration of constructive dismissal relevant. These elements were not discussed in Judge Leach’s analysis and the outcome of such examination will remain to be seen.

In the Scottish case of Gibson v Lothian Leisure, the Tribunal found that Mr Gibson was unfairly dismissed under Section 100 of the Employment Rights Act 1996 when he raised concerns about returning to work as a chef in April 2020 (when all of the initial restrictions were still in place) in circumstances where the employer indicted no intention to require staff to take precautions and create a Covid secure working environment. The Employer in that case did not attend the hearing or advance any evidence but the principle was established by the Tribunal that, at least at that time, the employee’s dismissal was because he had raised concerns of imminent danger to him and as such was automatically unfair under section 100.

The judgement in X v Y  has provided an element of clarity for employers and this certainty will no doubt be welcomed in what appears to be the third year that Covid-19 will impact businesses. Employers should, where possible, include employees in the discussions around the prevention of contracting the virus at work; if an employee is aware of preventive steps they are less likely to believe (or to be able to argue) that they are in serious and imminent danger and employers should make their risk assessments available as part of those discussions. Employers should take all safety concerns raised by employees seriously and keep accurate records of any investigation that results.

Should you have any queries about the issues contained in this article, please contact Linky Trott or any member of the Employment Team.

 

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