By Paul Kelly, Solicitor Partner, Blacks Solicitors LLP (www.LawBlacks.com)
Last year, a woman (who remains anonymous) brought an Employment Tribunal (ET) claim for discrimination on the grounds of philosophical belief against her employer. This was in response to the employer withholding her wages when she refused to return to work in July because she feared she would catch COVID-19 and pass it to her husband, who was (she asserted) extremely vulnerable to the virus.
The employee told the ET that she had ‘reasonable and justifiable health and safety concerns’ and contended that these supported her decision to refuse to return. However, the Employment Judge ruled that her fears did not amount to a ‘philosophical belief’ within the meaning of the Equality Act 2010, but instead were an opinion based on available information about how best to reduce or avoid the risk of physical harm occasioned by the pandemic. As a result, her claims were dismissed and the employer was held to be within its rights to deduct wages when she refused to attend the workplace.
Employers may be forgiven for thinking that this case allows them to take action against any employees who refuse to come into the workplace due to COVID-19 concerns. However, it is still important that they continue to comply with their obligations under the Health and Safety at Work Act 1976 and make sure the workplace is ‘COVID-secure’. Failure to do so could leave them vulnerable to claims under section 44 of the Employment Rights Act 1996 (which protects employees from being subject to detriment where, for example, they refuse to return to work because of a reasonable belief that there is serious and imminent danger associated with their workplace).
If an employee does refuse to return to the workplace, employers should consider each refusal on an individual basis and be cautious when deciding whether to take disciplinary action, especially if the employee is in a ‘high risk’ category and may have reasonable grounds not to return.This should also be considered in the context of the recent advice issued by the Government to work from home where possible in an effort to reduce the spread of the Omicron variant.
As this case was heard in the ET (and not one of the appeal courts) it does not set a legal precedent, but does give a good indication of the issues the ET will take into account when determining cases such as these. It is likely that this will be but one of many claims we will see working their way through the ET system in relation to employees refusing to attend work due to a fear of COVID-19.
If you have any questions about employees refusing to attend the workplace, please e-mail Paul Kelly at PKelly@LawBlacks.com