A significant minority of people – often referred to as ‘COVID sceptics’ – firmly believe that measures taken to control the virus are an unwarranted impingement on their personal freedom. The question of whether such beliefs can qualify for protection under the Equality Act 2010 was considered in a guideline employment case.
The case concerned a warehouse operative who expressed the belief that COVID-19 testing is flawed, that face masks afford no protection against the virus and that disinfecting surfaces is pointless and possibly dangerous. He was adamant that it was for him alone to decide how to protect his health and that anti-COVID measures taken by his employer were an affront to his free will.
Following his resignation, he lodged an Employment Tribunal (ET) claim, alleging that he had been subjected to indirect discrimination because of his COVID-sceptic beliefs. The employer responded by applying to have his complaint struck out on the basis that it had no reasonable prospect of success.
Ruling on the matter, the ET noted that his conduct, which he said arose from his principled COVID scepticism, might be considered in the eyes of some as putting others at increased risk from the virus. However, there was nothing inherently abhorrent about his beliefs and the employer’s argument that they would be likely to be found to conflict with the rights of others was rejected.
The ET expressed doubt as to whether the man would succeed in establishing that his beliefs were more than an expression of opinion and that they had the cogency and coherence required to qualify for protection under the Act. The employer also had an apparently strong argument that its anti-COVID measures were a reasonable means of achieving a legitimate aim.
However, in declining to strike out the complaint, the ET noted that it was not for it to make a value judgment about the man’s beliefs. It could not be said that he had no reasonable prospect of establishing that they were protected and that he had been subjected to particular, non-trivial disadvantages because of them. The ET directed that his constructive unfair dismissal claim should also proceed to a full hearing. His further complaint that he suffered discrimination due to his Christian faith was, however, struck out.