COVID-19 cases continue to work their way through the courts and tribunals. In the recently decided case of X v Y, the Employment Tribunal ruled that a Claimant’s fear of catching COVID-19 did not amount to a philosophical belief under the Equality Act 2010.

Background

In July 2020, the Claimant failed to return to work on what she believed to be health and safety grounds and as a measure to protect herself and her vulnerable partner from contracting COVID-19. In response, her employer withheld her wages whilst she remained off work. The Claimant raised a complaint of unlawful discrimination on the protected characteristic of religion and belief.

When asked at the Hearing what specifically her asserted philosophical belief was, the Claimant stated “a fear of catching COVID-19 and a need to protect myself and others”.

Definition of a philosophical belief

The Tribunal referred to the 5-part test established in Grainger plc v Nicholson (as reflected in the EHRC Code at paragraph 2.59) which sets out the criteria used to define a philosophical belief:

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

Judgment

It was not in dispute (at this stage of proceedings) that the Claimant’s views were genuinely held in terms of the first Grainger criterion.

However, the Tribunal found that:

  • the Claimant’s fear did not amount to a belief, but instead “a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat”
  • the Claimant’s asserted belief was about the protection of herself (and her partner) and the asserted belief did not go beyond this and did not satisfy requirement (iii) of Grainger
  • Criteria (iv) and (v) of Grainger were met

It was therefore concluded that the Claimant’s belief did not satisfy the Grainger criteria and therefore was not a protected philosophical belief within section 10(2) of the Equality Act 2010.

Although Employment Tribunal decisions are not legally binding on subsequent Tribunals and each case turns on its own specific facts, this judgment provides helpful clarity to employers as they continue to navigate the pandemic.

This article was co-written by Jenna Alexander, Trainee Solicitor.