A Tribunal has ruled that a fear of catching COVID-19 is not a protected belief under the Equality Act following a UK worker’s claim that she had been discriminated against by her employer after she refused to attend work on health and safety grounds during the pandemic.
The claimant had alleged that in July 2020 she had refused to return to work on the basis that she had “a fear of contracting COVID-19 and a need to protect myself (sic) and other”. Specifically, the Claimant had a ‘genuine fear’ of passing it to her partner who was vulnerable.
The Judge held that the claimant’s fear did not amount to a belief and rather ‘it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another.’ He added that “it can also 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”.
The judgment is not legally binding however it will no doubt provide employers with some confidence when considering whether to deduct pay or dismiss employees who refuse to return to the office due to a fear of catching COVID-19. However, employers should ensure that they tread carefully to ensure they do not discriminate on the basis of any other protected characteristic or leave themselves vulnerable to potential unfair dismissal claims for any employees who have over two years’ service. In addition, under section 44 of the Employment Rights Act 1996 (‘the ERA’) employees are protected against being subjected to a detriment for refusing to work in circumstances in which they believe there to be a ‘serious and imminent’ danger. Under section 100 of the ERA employees who are dismissed for taking steps to avoid a ‘serious and imminent’ risk of danger may qualify for a claim of automatic unfair dismissal which does not require the usual two years’ service.
Despite the above comments of the Judge, he did also state that “Fears about the harm being caused by COVID-19 are weighty and substantial. They are certainly not minor or trivial…”.
With this in mind, it is important for employers to understand the health and safety obligations which they have towards their employees. The Health and Safety at Work etc Act 1974 imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees.
In order for an employer to discharge such duties they should ensure they are taking steps to consider how they might minimise the risks of COVID-19 which could include but are not limited to the following:
- Carry out suitable risk assessments to identify risks. Such risk assessments may need to look at different groups of workers (such as pregnant workers or individuals with a disability) who may need reasonable adjustments or additional measures to be implemented;
- Implement measures and take reasonably practicable steps to minimise such risks;
- Provide adequate ventilation in the workplace;
- Provide hand sanitiser and actively encourage employees to use it;
- Arrange for the workplace to be cleaned more regularly;
- Ensure they have a system in place for if employees attend the workplace with COVID-19 symptoms.
- The Health and Safety Executive have provided guidance on what employers should be considering as part of their risk assessment.
We would recommend that if employers have any concerns or doubts on their health and safety obligations and whether they have been discharged in respect of Covid-19 specifically and/or whether they can mandate employees to return to work at any stage, subject to Government guidance, they should seek legal advice.