Shielding: Is It A Protected Belief Under The Equality Act?

Caragh Bailey
3 min read
Shielding, a Protected Belief? A case study from Employment Law Friend

Case Ref:
Case Name:
X v Y
Relates to:
Age Discrimination, Breach of Contract, Disability Discrimination, Health & Safety, Public Interest Disclosure, Religion or Belief Discrimination, Unfair Dismissal, Unlawful Deduction from Wages, Working Time Regulations
'The claimant’s belief in a fear of catching Covid-19 and a need to protect herself and others, does not amount to a philosophical belief for the purposes of section 10(2) Equality Act 2010.' (Click to read details)

In the case of X v Y (both parties having been granted anonymity) a tribunal in Manchester has held that a woman’s fear of catching Covid and infecting others is not a philosophical belief for the purposes of the Equality Act 2010.

The Claimant, a Ms X, refused to return to work on 31 July 2020 because of a fear that she would get Covid and potentially infect her partner, who was considered to be at a high risk from getting seriously unwell from Covid. Her employer refused to pay her, considering her refusal to attend work to be unreasonable, and she brought her claim for discrimination on the grounds of philosophical belief.

At the hearing she defined her belief as “A fear of catching Covid 19 and a need to protect myself and others.” The employer conceded the belief was genuinely held, and so the matter turned on whether this belief was sufficient to meet the requirements of a legally protected philosophical belief.

There are five requirements to consider when deciding if a belief meets the legal threshold, derive from a previous case, Grainger v Nicholson, and are generally known as the Grainger v Nicholson test. Importantly, all five of the tests need to be met for a belief to be protected.

First, the belief must be genuinely held, which the employer conceded. Secondly, it must be a philosophical belief in which someone actually believes, and not an opinion or viewpoint based on the present state of information available, or some real or perceived logic.

The Judge found that Ms Xs views did not constitute a belief but were rather a “reaction” to a risk of physical harm, and therefore this requirement was not met.

Thirdly, the belief must be a belief as to a weighty and substantial aspect of human life and behaviour. Whilst not disputing the subject matter, the risk of Covid, was weighty and substantial, the Judge continued that this was not a belief as such, not least because it only concerned the risk to the Claimant herself (and her partner), rather than being a belief on wider terms.

The fourth requirement is that the belief must attain a certain level of cogency, seriousness, cohesion and importance and the fifth requirement is that it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others. The tribunal decided that both of those latter requirements were met.

The tribunal concluded that because the belief did not satisfy all five criteria, in particular it was not a belief as opposed to an opinion and because it was restricted to the Claimant, it did not fulfil the requirement of being a belief as to weighty and substantial aspect of human life and behaviour, it did not amount to a protected philosophical belief in law.

This was an unusual case, as normally claiming the right to continue shielding would be brought as claim for disability discrimination, or potentially under health and safety legislation. The tribunals’ decision was unsurprising.

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