REWARD
Fear of Covid-19, flexible working and forced resignation
In each issue, NicolaMullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different employment law cases
Fear of catching Covid-19 isn’t a philosophical belief In the recent employment tribunal (ET) case of (X v Y), an unnamed employee refused to return to the workplace, despite government coronavirus restrictions being lifted allowing employees to do so. The employee argued she had reasonable and justifiable health and safety concerns about the workplace in relation to Covid-19 and the threat it posed to public health. These concerns were amplified due to her partner being considered as high risk of getting seriously unwell from Covid-19. The employee was subsequently not paid for the period of refusal to work. She claimed this decision constituted discrimination on the grounds of a philosophical belief, namely coronavirus, and the danger from it to public health. When probed by the tribunal on exactly what the belief was, the claimant confirmed it was a fear of contracting, and spreading, Covid-19. When determining whether this belief should be protected as a philosophical belief under the Equality Act 2010, the employment judge considered the five
● it must be a belief, and not an opinion or viewpoint, based on the present state of the information that is available ● it must be as to a weighty and substantial aspect of human life and behaviour ● 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. The employment tribunal system has confirmed the responsibilities of employers to provide an outcome to all flexible working requests within three months of the request being made
The ET concluded the claimant genuinely held the belief, that it was cogent, worthy of respect and is a weighty and substantial aspect of human life and behaviour. However, the claim was still rejected on the grounds that, while it is genuinely held, her fear is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. The judge further commented the fear is time-specific, since the concerns will only last for as long as the dangers associated with the Covid-19 pandemic do, and that it did not relate to society as a whole. It was made clear that the employee was solely concerned about catching the virus herself and passing this on to her partner. The employee can no longer proceed with a claim for discrimination; however, it remains to be seen whether a separate claim for suffering a detriment after making a protected disclosure is allowed to proceed and whether it will succeed. A new ET will have to determine whether her fear meets the criteria to be a qualifying disclosure. If so, the employer may later face difficulties that the loss of wages was a detriment, for which compensation may apply. It’s important to note that, since this case was only considered by the ET, the
key tests about the belief: ● it must be genuinely held
| Professional in Payroll, Pensions and Reward | March 2022 | Issue 78 30
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