Does fear of COVID-19 fall under the protection against discrimination?

After nearly two years of temporary closures, work from home and hybrid arrangements, employers might start to consider it is time to forget about COVID-19 and return to workplace. While they may try to make the workplace environment more welcoming and more enticing for the employees, it is clear that COVID-19 does not discriminate and will infect any host it can.

In fact, the Omicron variant spreads much quicker than previous variants. It is not clear yet, whether it is less severe in most people. The fear of the spread of COVID-19 might prevent some employees from returning to the workplace. This may be because they themselves are at high risk or they may care for a relative who is at high risk. While there is no Slovene case-law available (yet), it is unlikely that this fear itself would be enough to provide for a substantiated claim against the employer.

The recent Employment Tribunal’s decision in X v Y (anonymised parties) provides a great insight that an employee’s fear that she might catch COVID-19 and needed to take steps to protect herself and others, did not amount to a protected belief and treatment in relation to the employee based on her belief was not discriminatory.

The facts

After the start of the second wave of COVID-19, Claimant as an employee held a genuine health and safety concern about returning to the workplace amid COVID-19 pandemic. The spread of the virus as the time was on the rise and she had a genuine fear of getting the virus herself, and passing it on to her partner, who has a high risk of getting seriously unwell from COVID-19.

For this reason, on 31 July 2020, Claimant took a decision not to return to the workplace on grounds of health and safety. Her employer told her that he would not be paying her and noted that he does not accept the employee had a reasonable belief that returning to work would put her or her husband in serious and imminent danger. The employer withheld the employee’s wage.

The employee then initiated a claim for discrimination on the grounds of a philosophical belief in regard to COVID-19 and the danger from it to public health. The employee held that this is genuinely held belief by herself and that it is an important belief and forms a substantial aspect of human life and behaviour.

The Employment Tribunal judgment

The employment tribunal dismissed the claim. As far as the grounds for the claim were concerned, the Tribunal said that the case-law established five criteria for ascertaining whether a belief is protected by the Equality Act (2010).

The belief must be genuinely held

It was not disputed that the employee had a genuine concern or fear that she might catch COVID-19 and that she needs to take steps to protect herself and others.

It must be a belief and not an opinion or viewpoint based on the present state of information available

The Employment Tribunal found that this fear was a reaction to a threat of physical harm and the necessary steps to reduce that threat. Additionally, it is a widely held opinion amid the pandemic and the only way to reduce such threat is to isolate (note that in the second wave, vaccination was not an option). However, such a reaction or opinion does not meet the belief criterion.

It must be a belief as to a weighty and substantial aspect of human life and behaviour

Fears about the harm being caused by COVID-19 are weighty and substantial and are also aspects of human life and behaviour. While such fears are time specific (amid the pandemic), they are nevertheless impactful on the employee’s everyday life and he behaviour. However, such fears do not amount to a belief.

It must attain a certain level of cogency, seriousness, cohesion and importance

The employment tribunal accepted that the fear of contracting COVID-19 is intelligible, capable of being understood, meets the requirement of cohesion, serious, important and cogent.

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

The Respondent did not dispute this criterion and the employment tribunal accepted that this criterion was met.

The employment tribunal found that two of the above five criteria were not met and for this reason found that the Claimant’s belief in a fear of catching COVID-19 and a need to protect herself and others, does not amount to a philosophical belief.

Take home point

This is a good illustration of how courts generally might approach any discrimination claim based on a fear of COVID-19. It should be borne in mind that the developed five step test by the case-law, on which the Employment Tribunal based its decision, also enshrines Article 9 of the European Convention on Human Rights, and so a potential decision by a Slovene court could be generally similar. Currently, there is no similar decision of Slovenian courts or case-law of the European Court of Human Rights (an informative list of cases related to COVID is available here) available (yet).

However, in our experience, the better approach is to avoid having disgruntled employees in the first place. This is why we normally recommend:

• providing an updated risk assessment and practical steps to reduce COVID-19 risk;
• adopting and explaining COVID-19 related policies to provide for safe working practices; and
• (if possible) continuing the provision of work from home or hybrid models and holding off with the “due date” to return to the workplace.

In any event, let’s not forget the recommended approach and follow all reasonable instructions put in place, such as wearing masks, regularly washing their hands, maintaining social distancing, airing out the workplace etc.

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