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Could employees with anti-vax beliefs be protected under discrimination laws?

Written by James Tamm on 13 January 2022

You might have heard about the recent case of an employee who refused to return to the workplace due to COVID safety concerns and later brought a discrimination claim against her employer after they refused to pay her.

The claimant in this case argued that her “genuine fear” of contracting the virus and passing it on to her high-risk partner amounted to a protected belief under the Equality Act 2010 (EqA) and that, as such, the employer’s actions amounted to unlawful discrimination.

The Employment Tribunal disagreed. It concluded that “a fear of catching COVID-19 and a need to protect and others” does not constitute a ‘philosophical belief’ – one of nine protected characteristics – and the claimant’s case was rejected.

This isn’t the first time that an employee has taken their employer to court over COVID safety concerns. However, this case was somewhat unusual in that the employee argued her case from the angle of discrimination on the grounds of philosophical belief rather than whistleblowing or claims related to imminent and serious health and safety concerns, which are the more common approaches.

Despite being unsuccessful, this case may pave the way for others to argue that their COVID-related opinions are ‘beliefs’ and therefore capable of protection against discrimination. The most obvious example, of course, would be those who disagree with vaccination.

Is an anti-vax stance a philosophical belief?

The fear of catching COVID may not be a protected belief, but what about an employee’s belief that mandatory vaccination is wrong, or conflicts with a person’s basic human rights? Would such a view have any prospects of success if argued before a Tribunal, in cases where employees feel they have been unfairly treated because of it?

While we can’t say for sure until we have case law to clarify the issue, it’s certainly possible.

In order for a person’s opinion or viewpoint to qualify as a philosophical belief, it must pass the five tests outlined in section 10(2) the EqA. Namely, the belief in question must:

  1. Be genuinely held;
  1. Not simply be an opinion or viewpoint based on the present state of information available;
  2. Concern a weighty and substantial aspect of human life and behaviour;
  3. Attain a certain level of cogency, seriousness, cohesion and importance; and
  4. Be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.

Unless a belief satisfies all five criteria, the claimant’s case cannot succeed. In the aforementioned case, for example, the Tribunal concluded that a fear of COVID didn’t clear the second hurdle. In particular, the judge found that a fear of COVID couldn’t be described as a belief; “rather, it is a reaction to a threat of physical harm”. It therefore wasn’t capable of protection.

However, anti-vax views may be a different story. Vaccines are invasive, irreversible medical procedures with known (albeit low) risks, and an employee’s prospects of success when it comes to satisfying all five parts of the test may therefore be greater.

Arguably, cases of this nature will turn on point five, whether the individual’s viewpoint is worthy of respect in a democratic society. This may come down to how the employee presents their case. For example, their stated belief may be that ‘society shouldn’t be mandating medical procedures in order to access employment or certain employment benefits’, or that ‘people have the right to make their own decisions about their body’. Framed that way, you can see how it may be possible to persuade a judge that such a belief is worthy of respect in a democratic society (particularly if the judge feels the same way).

In other words, someone who is vehemently against mandatory vaccination for wild conspiratorial reasons will not necessarily be able to satisfy the fifth test, but someone who takes a more measured approach may have a good chance of success.

The key to this is likely to be the last few words in point five: the belief must “not be in conflict with the fundamental rights of others”. For example, is the belief against mandatory vaccination conflicting with the right to life of others? The data seems to suggest that it is the unvaccinated that are at the highest risk of serious illness and death, so arguably not. It will be very interesting to see how this plays out.

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So, in what situations might we see claims like these?

There are two main scenarios where employees who are against vaccination, and therefore refuse to be vaccinated, might be able to argue that they have been subjected to a detriment, i.e. discriminated against, as a result of their philosophical belief.

First, an employee may be able to claim discrimination if they are denied full sick pay based on the fact they are unvaccinated. In the last few months, Morrison’s and IKEA have been criticised in the press for slashing sick pay entitlement for unvaccinated staff. The two companies will now only pay employees the basic level of SSP rather than more generous company sick pay if they are forced to self-isolate after being identified as a close contact.

While reducing sick pay is largely down to employers’ discretion, they must use this discretion fairly and consistently, and in a non-discriminatory manner. This will involve taking into account any individual circumstances relating to employees which may mean they are unable to be vaccinated, for example for reasons relating to a disability, pregnancy or (though perhaps more unlikely) a religious or philosophical belief.   

The second conceivable scenario employers might encounter is employees claiming discrimination after being dismissed or denied employment (remember, claims can also be brought in regard to treatment in the pre-employment stage) for not having the vaccine. Again, this could potentially transpire into claims for dismissal or detriment relating to a philosophical belief around vaccination.

This causes an acute problem for employers in the care and health sector where vaccines have been mandated by law as a requirement for employment. If a claimant successfully established a philosophical belief against mandatory vaccination, they could pursue a direct discrimination claim on the basis they have been dismissed because of that belief. The employer would then argue that the reason for dismissal was not the belief itself but rather the legal requirement for employees to be vaccinated. It would be for the Tribunal to decide which was the actual reason for the treatment.

Final thoughts

It’s likely that cases like these will soon start to come out of the woodwork, particularly as the introduction of mandatory vaccination regulations in sectors such as care are likely to be a catalyst for these sorts of claims, and these won’t have had the chance to work their way through the system yet. Heated workplace debates about vaccination sparked by the media and the government’s plans to extend mandatory vaccination rules to frontline health and social care workers this April may also add fuel to the fire.

For now, whether an employee’s claim for discrimination is likely to succeed is up for debate. What we do know, however, is that much stranger examples have been accepted by Tribunals as genuine philosophical beliefs, including a belief in anti-fox hunting and a belief that mediums can communicate with the dead. Based on those decisions, there’s every chance that anti-vaccination views will be protected – employers should therefore proceed with caution when dealing with such matters, and always seek advice.

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