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Round up of 2022 Covid cases so far

 

A fear of catching Covid-19 was held by employment tribunal not to be a philosophical belief protected by the Equality Act 2010

The first instance case of X v Y is a helpful decision for employers as it held that a fear of catching Covid-19 does not qualify as a philosophical belief and therefore is not protected by discrimination law. However, it should be borne in mind that employees are still free to bring claims on health and safety grounds regarding their concerns about catching Covid in the workplace.

Background

In July 2020, the Claimant refused to return to her workplace on grounds of health and safety as she had a genuine fear of catching the Covid-19 virus herself and of passing it on to her partner who was at high risk of becoming seriously unwell.  However, her employer did not accept that she had a reasonable belief that returning to work would put her or her husband in serious and imminent danger, and accordingly withheld her wages.

The Claimant claimed that she had been discriminated against/subjected to a detriment on grounds of her belief which she stated was “a fearing of catching Covid-19 and a need to protect [herself] and others”.

Tribunal’s Decision

The following five criteria must be satisfied for a belief to qualify as a “philosophical belief”:

  1. The belief must be genuinely held.
  2. It must be a belief and not an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. 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.

It was not disputed that the Claimant’s belief was genuinely held but it was held that the second and third criterion were not met and accordingly the Claimant’s fear did not amount to a “belief”. Rather than being a belief, it was a reaction to a threat of physical harm and accordingly the second criteria was not satisfied. The Claimant shared a widely held opinion that taking certain steps would increase the risk of contracting Covid-19 and may therefore be dangerous. In relation to the third criteria, the judge found that the fear is about the Claimant herself and protection of others i.e. her partner so it was not wide enough to be a “weighty and substantial aspect of human life and behaviour” as it was time specific and only held in relation to the Claimant and her partner.

Refusing to return to the workplace due to health and safety concerns found to relate to a general fear about leaving home and an employee’s perception that danger was everywhere, rather than specific concerns about the employer’s workplace

In Moore v Ecoscape UK Ltd, Ms Moore was employed in a sales and administration role for less than 2 years at the date of her dismissal. Ecoscape is a small business with approximately 20 employees.

When the first national lockdown started in March 2020, Ms Moore was furloughed – she was not in an at-risk category and had not been instructed to shield. In mid-April, Ecoscape decided to re-open which was permitted but with all required safety measures in place. It had conducted Covid-specific risk assessments, made adjustments to office access and sanitisation procedures and provided her with a separate working space, with her own equipment to address any concerns.

Ms Moore was, however, still reluctant to return and asked to work from home. This request was rejected on the basis that Ms Moore’s role involved dealing with deliveries and customers. She therefore took some paid and unpaid leave too and over the next month, the company went to great lengths to persuade her to return to the office, highlighting the safety precautions it had taken and offering to put in place more measures. However, Ms Moore refused to return to the office but did not specify what her actual concerns were beyond anxiety at returning to the workplace.

Ms Moore raised a grievance and grievance appeal but after both were unsuccessful. She was signed off work with stress-related issues and anxiety until August 2020 at which point, she resigned and brought a claim for constructive unfair dismissal. She sought to rely on section 100 of the Employment Rights Act 1996 pursuant to which dismissal is automatically unfair where an employee reasonably believes that they are in serious and imminent danger if they leave or refuse to attend the workplace while the danger persists. This is a day 1 right and employees do not need 2 years’ service to bring such a claim.

The Employment Tribunal found that the Claimant’s covid concerns related to a general fear about leaving her home and her perception that danger was everywhere, rather than specific concerns about the employer’s workplace.

Ecoscape had engaged with Ms Moore in numerous messages and while there were concerns regarding the original configuration of the office, it tried to accommodate her concerns by offering her a separate room with her own equipment such as a printer. The staggered shifts were also aimed at reducing movement in the office. The appropriate measures rendered Ms Moore’s belief not objectively reasonable. Sufficient and adequate hygiene measures were in place and Ms Moore was able to socially distance.

The employment tribunal concluded that Ms Moore was unwilling to explore compromises, the employer had not acted unreasonably and therefore the Claimant’s claim failed.

Dismissing an employee who mistakenly broke the Covid rules was held to be unfair by Scottish Tribunal

Mr Lewis worked at the Benriach Distillery Company Limited as a forklift truck driver in Newbridge from January 1998 until 25 February 2021.

At the start of February 2021, Mr Lewis’ son took a Covid test whilst experiencing symptoms associated with Covid-19 (a cough and loss of his sense of smell), which Mr Lewis did not believe were genuine symptoms. At the time, Scottish government guidance stated that anyone who lived with someone displaying symptoms must isolate.

Whilst his son was waiting for his test results, Mr Lewis went to work in the usual way. Positive test results came back on 9 February 2021 and during an internal investigation, Mr Lewis explained that he believed that his son was pretending to be ill so that he could take sick leave from work.

Mr Lewis was described as “highly irresponsible” and “reckless” in an email from a HR worker to Mr Lewis’s line manager before an investigation was launched.  Mr Lewis had stated “To be honest I didn’t think he needed a test. One of his pals was going for a test and he said he had a sore head”.

He was subsequently dismissed on 25 February 2021 without notice or payment in lieu of notice after the firm accused him of committing a “serious breach of health and safety policies”. After his internal appeal failed, Mr Lewis issued proceedings in the employment tribunal.

The employment tribunal found that the dismissal, with immediate effect, was unfair and “irrational”. Although it was accepted that there was understandable anxiety by employers on the possibility of infection in the workplace, this did not override the normal legal tests that are required to be applied by a tribunal. It was held that the employer did not have reasonable grounds for their belief in Mr Lewis’s misconduct and dismissal was outside the range of reasonable responses. The Judge further stated that even if Mr Lewis’ actions amounted to misconduct, this lacked character of gross misconduct because it was “neither intentional nor gross negligence”. The employer should have had in mind:

  1. His 23 years of good service;
  2. His record of compliance with Covid guidance; and
  3. There was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.

The Judge was also critical that the HR worker had a pre-determined view of Mr Lewis’ conduct which was available to dismiss and appeal managers. Moreover, the dismissal was procedurally unfair as Mr Lewis had not been notified that he was being accused of deliberately breaching policy/procedure and there was a failure to identify and/or produce the policy/procedure complained of.

The Tribunal, however, accepted that Mr Lewis had not believed his son was showing Covid symptoms and, therefore, he did not need to self-isolate. However, he should have self-isolated once he learned that his son had taken a covid test over the weekend, even if the results had not returned when Mr Lewis went into work on Monday. The employer was ordered to pay £23,978.19 in compensation for unfair dismissal.

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Although correct at the time of publication, the contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.