C-19 views and belief-based discrimination
A recent Employment Tribunal case has brought some welcome clarity about C-19 and beliefs.
The claimant employee refused to attend for work on the basis that she had a desire to protect herself and others from the virus and to protect her vulnerable husband. Her employer said that if she did not return to work then she would not be paid. The employee claimed that the refusal to pay her wages was an act of discrimination on the basis of her philosophical belief about C-19.
In order to claim the existence of a religious or philosophical belief, an employee must be able to establish 5 propositions: that the belief is genuinely held, that the belief is a belief as opposed to opinion, that the belief relates to a weighty and substantial aspect of human life and behaviour, the belief has a certain level of cogency, seriousness and importance, and finally, that the belief is worthy of respect in a democratic society and not incompatible with human dignity. The employee persuaded the judge on 4 of the 5 elements. She lost on the issue of belief itself. The judge concluded that she had a fear of physical harm and her views were a reaction to a threat of physical harm. However, they did not amount to a belief within the meaning of Section 10 Equality Act 2010.
C-19 views, reasonable management instructions and automatic unfair dismissal
We can compare this to a recent case involving dismissal and a belief about government guidance. The claimant was a short-service refrigeration engineer. On 20th March 2020 the government announced the Coronavirus Job Retention Scheme. On 23rd March 2020 the national lockdown was imposed. The employee formed the view that he should not be performing routine maintenance work but that the rules would allow him to perform urgent and essential work. There was a WhatsApp exchange on 23rd March 2020 between the employee and his boss. The employee was tasked to travel the next day for work. He replied, “Guessing you just watched Boris. So, we are staying at home unless it is absolutely necessary to go to work?” The employer replied telling the employee to go to the client site the following day. He replied, “I know you don’t want to stop working…but we all have a responsibility to do what’s being asked. Therefore, I am going to stay at home and would urge you to do the same. I understand that if any call out is urgent and/or essential I will come in and help”. The employer replied telling him that he would collect the company van and laptop the next day. The employee made it clear that he had been dismissed because he was being dismissed because of his concerns about health and safety. The employer replied, “To clarify, I’ll be making you redundant”. A letter asserting dismissal by reason of redundancy was sent.
The Tribunal concluded that the employee had been dismissed because of his WhatsApp message on 23rd March 2020. The employee had in fact raised concerns and his employer had made no attempt to discuss them. The employee had made it clear that he was available for urgent and essential work and the reality was that in all probability the employer actually shared this view. Obviously, this was absolutely not a redundancy situation because the work and requirement to perform the work had not ceased or diminished. Therefore, this was a dismissal which was directly related to health and safety and the concern raised by the employee. This was an automatically unfair dismissal. Section 100(1)(c) Employment Rights Act 2010 says that a dismissal is unfair if an employee brings to his employer’s attention circumstances connected with his work which he reasonably believes are harmful to health and safety and is dismissed because of that notification.
We would urge employers to always beware the power of automatic unfair dismissal claims and to remember that important employer-employee relations issues including employee concerns on any topic and, of course, involving dismissal, should never take place by WhatsApp or social media!
What next for 2022?
There will be increases for statutory payment rates. The national minimum wage and living wage, SSP and SMP will all increase between 1st and 11th April 2022. 2022-23 Statutory Payment Rates for SMP, SSP etc | CIPP. National Insurance contributions for employers and employees will rise by 1.25% on 6th April 2022. A new Employment Bill will come before parliament before too long. Watch out for enhanced rights for workers (including zero hour contract workers) who are likely to acquire the right to request a predictable contract after 26 weeks, making flexible working requests a day one right, allowing workers to receive their tips in full and the extension of redundancy protections for pregnant workers and those on maternity leave and other forms of family leave. Watch this space!