Can staff who are afraid of catching Covid-19 refuse to return to work in the office?

Is fear of Covid -19 a protected belief under the Equality Act 2010?

The Manchester Employment Tribunal has recently held that employees cannot use a fear of catching Covid-19 as a reason not to return to working from the office on grounds that it is a philosophical belief protected by the Equality Act.

Brief Facts

The brief facts of the case are as follows: -

• During the second wave of Covid-19, which saw a significant increase in infection rates, an unnamed woman refused to work from the office due to a ‘genuine fear’ of contracting the coronavirus and passing it on to her partner, who was at high risk of becoming seriously unwell.
• In response, her (unnamed) employer rejected her concerns about health and safety and stopped paying her.
• Subsequently, she brought a complaint about financial detriment and discrimination on the grounds of ‘belief.’

Ruling

Although Employment Judge Mark Leach accepted the woman had a genuine fear, he ruled that health and safety concerns about becoming infected with the virus do not qualify under Section 1 of the Equality Act 2010 as a philosophical belief (specifically it did not meet all five Nicholson criteria).  Instead, her concerns amounted to a reaction to a threat of physical harm. Accordingly, her complaint for discrimination was dismissed.

Take-aways for employers

When the current guidance to work from home (if you can) is lifted, this judgement is likely to give confidence to employers who are thinking of taking disciplinary action against employees for failure to follow a reasonable instruction to attend the office and/or making deductions from the wages of staff for the days they refuse to attend.

Notwithstanding this, employers should always respond to employees’ concerns about working from the office due to Covid-19 sensitively and should listen to their specific concerns and work collaboratively to resolve them.  For example, via a combination of maintaining Covid-19 secure measures, some hybrid working (if possible), phased returns to office working and informal workplace counselling/colleague to colleague support. In most cases it should be possible to encourage even the more reluctant back to office life.

If you require any further advice or support in relation to managing employees whose fear of Covid-19 is preventing a return to office life, please contact Heather Love or the member of the Downs employment team with whom you normally deal.