Fear of catching coronavirus is not a protected belief under the Equality Act. That is the ruling of the Manchester employment tribunal in one of the first cases we’ve seen on whether a fear of catching Covid-19 is protected by UK discrimination legislation. Although it is only a tribunal decision, so not binding, it does appear to be a sound judgment in our view, and will be welcomed by employers.
The case has received a lot of press attention, including a number national newspapers, ITV and, of course, the HR press, and it’s not surprising given the rapid spread of the Omicron variant with many people worried about their own health and that of family members.
The facts briefly. The employee, who is unnamed in the judgement, informed her employer in July last year that she would not be returning to the workplace. She claimed she had ‘reasonable and justifiable health and safety concerns about Covid-19’ in particular the risk of her passing the virus on to her partner who she said was at high risk of getting seriously ill. Her employer, also unnamed in the judgement, didn’t believe that her concerns were genuine and withheld her pay for the period that she was absent from work. As a result she went on to bring a claim of discrimination on ‘religion and belief’ grounds, one of the protected characteristics listed in section 10 of the Equality Act.
In a preliminary hearing on the point, Judge Mark Leach rejected the Claimant’s argument. Central to his decision was whether her belief met the test set out in the EAT’s decision in Grainger plc v Nicholson, known as ‘the Grainger test’. That sets out five criteria all of which need to be satisfied, but the judge said the Claimant failed to clear numbers 2 and 3. He ruled it was not a belief, rather just a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Also, he ruled it wasn’t sufficiently weighty or substantial because the Claimant’s fear was about protecting herself, and how she might protect her partner, and it went no wider than that. So, the fear didn’t, for example, extend to the health and safety of her colleagues, presumably because, unlike the Claimant, they were quite happy to return to the workplace.
So that’s a useful decision and gives some comfort to employers who choose to withhold pay if an employee unreasonably refuses to attend work citing health and safety reasons when they appear to be fit and well and able to return However, this case was decided on a very specific and narrow point around whether the Claimant’s fear of contracting Covid-19 could amount to a philosophical belief, so it certainly doesn’t give employers free reign to withhold pay, or discipline employees, in any case where fears of Covid are given as the reason for an employee staying at home. As we have highlighted previously in this programme, you need to treat every case on its own merits and check carefully exactly what the employee’s reasons are for not wanting to come into work because they might be perfectly justified depending on their particular circumstances.
That begs the question just how far can employers intrude into employees’ private lives to investigate whether their fear of returning to work is genuine? It’s an important point and it’s one we know a number of clients are currently grappling with so let’s hear more about this from Anne Sammon who has been advising on this. Anne joined me by video link to discuss how managers should handle it. I started by asking if this is a misconduct issue:
Anne Sammon: “Potentially, yes. What we're looking at here is a failure to follow a reasonable management instruction. So, I've asked you, employee, to come into the office and you're refusing to do so and then we then end up in a kind of disciplinary process of well what is the basis for the employee refusing to come in and are they behaving in a reasonable, or unreasonable, manner? It’s that piece where we start to have the ability to ask questions about how are they feeling about COVID and anxiety more generally, rather than just the workplace?”
Joe Glavina: “This looks to me like a bit of a minefield for managers, especially if they feel someone in their team isn’t towing the line and returning to work as they’ve been asked to.”
Anne Sammon: “Yes, and I suppose it's one of those situations where the investigation is really key and it's really important that employers don't overstep the mark in terms of that investigation. I've been speaking to clients who are keen to say, well, can we appoint a private investigator, for example and I think at the outset that is definitely a step too far. You need some real tangible information to be able to start thinking about whether this is appropriate to kind of start to properly intrude into someone's personal life in that way. So, I think at the outset of your investigation you're wanting to probably speak to the employee and understand their perspective and that's where those questions about, well, okay, so you're anxious about coming into the office, what is it that's causing that anxiety? Is it the office itself? Is it public transport? So getting to the root of what the issue is, and then trying to understand whether that issue is genuine. So is this an employee who is who is genuinely cocooning themselves at home, not going out, not seeing anyone, avoiding shops, etcetera? Or is this someone who is saying I'm anxious about coming into work, but then is attending football matches at Wembley Stadium for example?”
Joe Glavina: “So what about the situation where the employee has a role which requires them to be in the workplace either all or some of the time, but the employee says they’re too anxious to return, but they also avoid pubs and public transport so they bare at least being consistent. What, if anything, can the employer do in that situation?
Anne Sammon: “So I think most examples of that, where it's where it's a genuine level of anxiety, there are a couple of things that that you probably want to be thinking about. The first is, depending on how long lasting that anxiety is, and the impact that it's having, it looks to me like if someone can't leave the house that's a fairly significant impact and we're probably into the realms of it being a disability, depending on that kind of long lasting piece and whether it's expected to or has lasted 12 months or more. So we just have to be a little bit careful because we've got the obligation to make reasonable adjustments. But, if we've decided, and there is a really good business rationale for why that individual needs to be in the office, then we are potentially into the territory of ‘some other substantial reason’ and one of the really important things that employers will need to be thinking about is, well, are their alternative roles within the organisation that maybe could be home-based that we could offer as a way of avoiding a dismissal situation?”
On the subject of employees returning to work, in case you missed it, do be aware of the employment tribunal decision last year in Follows v Nationwide Building Society. That’s the case saying a rule requiring office-based working may disadvantage employees who care for disabled dependents, so insisting they must return could amount to indirect associative discrimination. Back in October Anne talked to this programme about that case in ‘Associative discrimination case spurs review of return to work policies’. That programme is available for viewing now from the Outlaw website.
- Link to judgement X v Y