UK Tribunal: COVID-19 Fear Not a Protected Philosophical Belief

​An employee's fear of catching COVID-19 at work doesn't amount to a philosophical belief protected by the U.K. Equality Act 2010, an employment tribunal has ruled. While that means employees can't simply cite a fear of COVID-19 in refusing to go to work, it doesn't free employers from the obligation to ensure health and safety in the workplace.

The decision followed an employee's complaint that her employer unlawfully discriminated against her by withholding wages after she refused to return to the workplace in July 2020. She based her refusal on a "genuine fear" that she would catch the coronavirus and spread it to her high-risk partner.

The employee contended this trepidation was a philosophical belief protected under the Equality Act. A tribunal judge disagreed, however, calling the employee's fear a reaction to a threat of physical harm and an opinion rather than a belief under the Equality Act, which requires five criteria be met to qualify.

"I doubt that anyone who is familiar with the criteria for determining if a philosophical belief qualifies for protection was surprised by the tribunal's decision," said Laura Morrison, an attorney with Dentons in Edinburgh, Scotland.

There are five elements to the test, she noted:

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

While the employee's concerns met some criteria, the tribunal judge ruled it didn't qualify as a philosophical belief.

"Employers will be relieved to know that employees cannot refuse to work purely because they are afraid of catching COVID. However, that is not the end of the story. Employers need to bear in mind their health and safety duties toward their employees and that they must not penalize employees, or treat them less favorably, for raising genuine concerns about the safety measures the employer has, or has not, put in place," Morrison said.

If employees refuse to work without other reasonable cause due to fear of catching and spreading COVID-19, they wouldn't be entitled to pay for the period they refuse to attend work, according to Morrison. She said an employer may also be entitled to take disciplinary action against or consider dismissing an employee who unreasonably refuses to attend work.

Other Employee Protections

Employers, nonetheless, have duties to maintain workplace health and safety, and employees have legal recourse for unfair disciplinary actions related to concerns over safety, legal experts noted.

As more employers seek to encourage their workforce to come back to the office, expect arguments like those put forward in this case to become more frequent. "Employers are likely to face pressure from employees to ensure that reasonable steps have been taken to limit the spread of COVID-19 in the workplace," said Jo Tunnicliff, an attorney with Shoosmiths in Birmingham, England.

"Employers should, if they have not done so already, ensure that their workplaces are as safe as reasonably possible, by implementing measures such as social distancing, personal protection equipment and being receptive to any concerns employees may have," Tunnicliff said.

"We have seen a number of employers implement COVID-19-specific policies such as flexible working and adjustments to sickness absence processes to include COVID-19-related guidance and allowances," she added. Employees with concerns about COVID-19 in the workplace should first address them directly with relevant managers and via any internal reporting processes, Tunnicliff said.

Employers need to be mindful of the distinction between a fear of catching COVID-19 and concern about the adequacy of health and safety measures, Morrison said.

Valid Safety Concerns

If employees believe the lack of safety measures in the workplace puts them in serious and imminent danger, U.K. employment law protects them from dismissal if they leave the workplace, Morrison noted. It is unlawful for an employer to subject an employee to less favorable treatment because the individual has raised concerns about health and safety, so dismissing an employee for raising such concerns is prohibited.

The case in this decision may be appealed to the Employment Appeal Tribunal, but that can be a high hurdle. "The unsuccessful party can only appeal against an employment tribunal decision if it got the law wrong or misapplied it to the facts. They can't challenge it just because they're unhappy with the outcome," said Joanne Moseley, a lawyer with Irwin Mitchell in Birmingham.

The case isn't binding on other tribunals, and it's possible another could reach a different decision on different facts, according to Moseley.

When an employee raises concerns about health or safety in the workplace, employers should investigate and take any action necessary to make changes or reassure the employee that it's as secure from the spread of COVID-19 as it can be, she said.

The government has signaled it plans to treat COVID-19 as endemic and has lifted remaining restrictions.

"The key message employers should take from this case is the importance of engaging with their workforce on health and safety issues and particularly the safety measures they have in place in relation to COVID," Morrison said. "Many a dispute can be avoided, or resolved, by meaningful discussion and a genuine desire to address an employee's concerns."

Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.