I - What was the Claimant’s belief?

2The Claimant stated:

1. « My belief is a philosophical belief (…) genuinely held by myself. I believe it is important and forms a substantial part of human life and behaviour. Placing limitations on a person’s right to manifest their religion or belief may amount to unlawful discrimination (…) usually (…) indirect discrimination ».

2. « On 31st July 2020 I took the decision not to return to the workplace on the grounds of health and safety. I had reasonable health and safety concerns about the workplace surrounding Covid-19 and I was also very worried about the increasing spread of the virus. I had a genuine fear of getting the virus myself and a fear of passing it to my partner (who is at high risk of getting seriously unwell from Covid-19) ».

3. « I made a protected disclosure in good faith and asserted my statutory employment rights about a danger to the health and safety to myself and others, which I reasonably believed to be serious and imminent ».

4. « (My employer the respondent) told me that he would not be paying me, and he said “I do not accept you had a reasonable belief that returning to work would put you and your husband in serious and imminent danger” ».

5. « I then had my wages withheld and suffered financial detriment ».

6. « I claim this was discrimination on grounds of this belief in regard to coronavirus and the danger from it to public health. This was at the time of the second wave of Covid-19 and the huge increase in cases of the virus throughout the country ».

II - What does the law say relating to philosophical beliefs?

1. the belief must be genuinely held;

2. • 6 In McClintock v Department of Constitutional Affairs [2008] IRLR 29, the EAT posited at § 45 that « (...)

   it must be a belief and not an opinion or viewpoint based on the present state of information available6;

3. it must be a belief as to a weighty and substantial aspect of human life and behaviour;

4. • 7 See the ECHR’s case of Campbell and Cosans v United Kingdom [1982] 4 EHRR 293 from which a belief t (...)

   it must attain a certain level of cogency, seriousness, cohesion and importance7;

5. it must be worthy of respect in a democratic society, be not incompatible with dignity and not conflict with the fundamental rights of others.

III - An analysis of the judgment

5Having considered the facts of the case and applied these to the five criteria in the Granger plc. v Nicholson case, Employment Judge Leach reached the following conclusions in each of these:

• • 8 X v Y Case No. 2413947/2020 26^th November 2021 and 8^th December 2021 (in Chambers) § 14.

  Regarding the criterion of a genuinely held belief, the judge found that the Claimant had a « genuine concern or fear that she might catch Covid-19 and that she needs to take steps to protect herself and others »8.

• • 9 Ibid., § 15.
  • 10 Ibid., § 16.

  In connection with the second criterion, namely that the belief must exist and not be an opinion or viewpoint based on the current state of information available, the judge did not believe that the Claimant’s fear qualified as a belief for the purposes of S.10 of the Equality Act 2010. He considered it « Rather as a reaction to a threat of physical harm, and the need to take stepsto avoid or reduce that threat. Most (…) people instinctively react to perceived or real threats to physical harm in one way or another »9. The so called belief according to the judge could be described « as a widely held opinion based on the (…) state of information available that taking certain steps [such as] attending during the height of the (…) pandemic would increase the risk of contracting Covid-19… However a fear of physical harm and views about how best to reduce (…) the risk of physical harm is not a belief for purposes of s. 10 »10.

• • 11 Ibid., § 18.
  • 12 Ibid., § 19.
  • 13 Ibid., § 19.
  • 14 Ibid., § 20.

  The third criterion is that the belief be a weighty and substantial aspect of human life and behaviour. The judge did not consider that the Claimant’s fear met this criterion although he did think that « Fears about the harm being caused by Covid-19 are weighty and substantial. They are certainly not minor or trivial. They are (…) aspects of human life and behaviour »11. The judge considered that the Claimant’s concerns were time specific in that « the fear will only last as long as dangers caused by the (…) pandemic remain present »12. The facts of this case show that her fear was about the Claimant herself and « the protection of herself and her own steps to protect others (principly her partner) »13. The judge considered that « the Claimant does not rely on a belief in wider terms than this and for this reason I find that this criterion is not met »14.

• The fourth criterion requires a certain level of cogency, seriousness, cohesion and importance. The judge accepted that the belief as described was intelligible and capable of being understood. It therefore met the requirement of cohesion and the fear of contracting Covid-19 and the Claimant’s requirements to take steps to avoid harm to herself and others, satisfied the test of seriousness and importance. The criterion of cogency was also met.

• The final criterion that 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 met the Claimant’s belief.

6The Employment Tribunal decided that the Claimant’s belief did not meet all five of the criteria as stated in the Nicholson case and therefore it did not qualify as a philosophical belief under the provisions of the Equality Act 2010 s. 10(2).

Concluding Remarks

9Allied to the above is the fact that the pandemic, - whether it be Covid-19 or its strands such as Delta , Omicron or any other unknown ones which may develop in the future, - requires employers to make difficult decisions which would generate more cases being heard and which could lead to a rapid and unprecedented increase in Employment Tribunal cases. The Employment Tribunals are already overburdened with pandemic cases involving, redundancies and unfair dismissal cases, health and safety cases, the furlough scheme and their calculation of payments, employees refusing to work, working from home and much more.

10The X v Y case discussed and analysed in this article is an indication on how identical or similar cases to this case might be decided in the future. The « digestive system of the judge » notion should also be born in mind, for a different judge could well find differently on a different day or interpret the facts of the case differently. However, the X v Y decision points towards the way in which, on the same or very similar facts, a future Employment Tribunal may reach its verdict thus giving employers who are faced with the same or similar situations some indication on how to deal with such cases thus releiving them from some stress.It should also be born in mind that Employment Tribunal decisions are no legally binding on other tribunals and courts and that cases may well be over ruled on appeal.

12The issue of people refusing to be vaccinated for religious or other reasons has not come before the Employment Tribunals yet. Nice problems are anticipated in such cases. It is submitted that refusal to be vaccinated may well qualify as a protected characteristic under the Equalty Act if it is shown that the belief affected the individual’s whole life.