Nick Ralph looks in detail at recent cases that have stemmed from the pandemic, including a refusal to attend work due to fear of contracting the virus.

X v Y

This case concerned an allegation of religion/belief discrimination. The claimant had refused to attend her place of work because she was afraid of catching Covid and passing it on to her ‘high-risk’ partner. The employer withheld her salary. She claimed that she had been subjected to a detriment because of her belief (‘a fear of catching Covid-19 and a need to protect myself and others’). In the event, the claim failed.

The relevant legal tests are set out in the case of Grainger plc v Nicholson and include:

  • The belief must be genuinely held.
  • It must be a belief, not an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.

It wasn’t disputed that the claimant’s concern was genuinely held. However, the employment tribunal (ET) held that that fear did not amount to a ‘belief’. It was merely a reaction to the threat of physical harm. The ET held that the claimant shared a widely held opinion that taking certain steps would increase the risk of contracting Covid-19 and may therefore be dangerous.

The claimant’s fear also did not meet the third test in that it was too narrow to meet the Nicholson criteria because it was time specific and only held in relation to the claimant and her partner.

Moore v Ecoscape UK Ltd

Ms Moore sought to rely on section 100 of the Employment Rights Act 1996 pursuant to which a 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.

Ecoscape required Moore to return to working from the office. It had carried out Covid-specific risk assessments, made adjustments to office access and sanitisation procedures and provided Moore with a separate working space with her own equipment to address her concerns. However, she was still reluctant to return and asked to work from home. The employer refused her request on the basis of the nature of her work, which involved her dealing with deliveries and customers. She raised a grievance, a grievance appeal and then, after both were unsuccessful, resigned and brought a claim for constructive unfair dismissal.

The ET 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. She had failed to enter into discussions with Ecoscape about the measures which had been implemented and she refused to visit the workplace to review those measures.

The ET held that Ecoscape had taken reasonable steps to accommodate the claimant's concerns, reacted patiently allowing her time to regain her confidence and engaged with her on a regular basis.

The ET concluded that ultimately, the claimant was unwilling to explore compromises, the employer had not acted unreasonably and so the claimant’s claim failed.

Lewis v The Benriach Distillery Company Limited

Mr Lewis was a long-serving forklift truck driver for a whisky distillery. He was dismissed without notice for attending work when a member of his household (his son) had informed him that he was displaying Covid-19 symptoms and had booked a Covid test. However, Lewis had not believed that his son's alleged symptoms (a cough and a loss of his sense of smell) were genuine, and thought that the son had been faking his symptoms to get off work. At the time, Scottish government guidance required anyone who lived with someone displaying symptoms to isolate. The next day, the son’s test came back positive. Following an internal investigation, Lewis was dismissed for gross misconduct.

An ET found that the dismissal was unfair. The understandable anxiety by employers on the possibility of infection in the workplace did not override the normal legal tests that are required to be applied by a tribunal dealing with an unfair dismissal claim. In this case, the ET held that the employer did not have reasonable grounds for their belief in Lewis's misconduct, and dismissal was outside the range of reasonable responses.

In particular, there was nothing in the government guidance that would indicate a requirement to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.

In an assessment of whether Lewis could be believed or was being untruthful, the reasonable employer should have had in mind:

  • his 23 years of good service;
  • his record of compliance with Covid guidance; and
  • that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.

The ET did find that there had been some contributory fault on the part of Lewis and so reduced his financial awards by 25 per cent.

This article was first published in People Management on January 2022.