Fear of Covid not a protected belief - Employment Tribunal

[Yew]

Making sure adults actually stick to wearing masks outside their own classrooms protects me etc.

Forcing dirty snotrags onto others would never have been tolerated pre-pandemic, everyone has had the chance to be vaccinated, and I see no reason why such policies should be tolerated any longer.

 

[43066]

My attending meetings via Teams and not being in whole school assemblies keeps me safe as a CEV.

With apologies to @Bayum - I missed this comment earlier where he/she declared they’re vulnerable. In which case of course I understand the desire to take what precautions you can - albeit I’d stand by saying the only measures that will make a significant difference are wearing FFP3 masks (much more effective than worrying about others wearing splash guards), and of course vaccines.

It’s a difficult one because I presume working remotely/from home is going to be untenable as a classroom teacher unless you move into a different role.

 

[ComUtoR]

I'd need to see the judgment text to comment fully, but it seems a bit odd that the claimant tried to shoe-horn "fear of catching Covid" as an alleged protected belief (i.e. equivalent to being vegan or following a given religion) into a claim that was squarely within the ambit of section 44 of the Employment Rights Act.

X v Y: 2413947/2020

Employment Tribunal decision.

www.gov.uk

Link is to the judgement text

 

[35B]

X v Y: 2413947/2020

Employment Tribunal decision.

www.gov.uk

Link is to the judgement text

The claim failed my smell test when I read the discussion at the beginning of the transcript about whether the hearing was in person or video based. The claimant was trying to over stretch the case by bringing in belief, when (for July 2020) an H&S case about risk would have been perfectly sufficient.

Now that the issue of Protected Beliefs has been dealt with, I’d be interested in the outcome of the substantive case.

 

[BackOnTheTrain]

I welcome the ruling and it is disappointing the Government messaging was so inappropriate that it scared people so much; I hope lessons have been learnt in this area.

If anyone is that concerned, they should talk to their employer about the possibility of wearing an effective FFP3 mask (which, unlike standard masks, is designed to filter aerosol particles) if they wish to wear one.

Other than allowing people who are vulnerable to wear such masks if they wish, I see no reason why we can't go back to normal.

I think that anyone who wants to wear a mask should be allowed to do so — those living with someone severely immunocompromised can then try and avoid picking up colds, flu and whatever else is in circulation as well as Covid-19. Preferably the masks should be FFP3 or FFP2 like you say. The *2 ones being easier to get hold of as Boots and Superdrug sell them. I haven’t seen anywhere on the High Street selling the *3 ones.

What I don’t understand with the FFP masks is why the NHS isn’t providing them for all patient-facing staff. The internal comms for Lincolnshire hospitals current OPEL4 status doesn’t mention them at all.

 

[35B]

I think that anyone who wants to wear a mask should be allowed to do so — those living with someone severely immunocompromised can then try and avoid picking up colds, flu and whatever else is in circulation as well as Covid-19. Preferably the masks should be FFP3 or FFP2 like you say. The *2 ones being easier to get hold of as Boots and Superdrug sell them. I haven’t seen anywhere on the High Street selling the *3 ones.

What I don’t understand with the FFP masks is why the NHS isn’t providing them for all patient-facing staff. The internal comms for Lincolnshire hospitals current OPEL4 status doesn’t mention them at all.

As a Lincolnshire resident, I’m inclined to put that down to the Trust’s long established history of poor management.

 

[43066]

The claim failed my smell test when I read the discussion at the beginning of the transcript about whether the hearing was in person or video based. The claimant was trying to over stretch the case by bringing in belief, when (for July 2020) an H&S case about risk would have been perfectly sufficient.

Now that the issue of Protected Beliefs has been dealt with, I’d be interested in the outcome of the substantive case.

We will probably never know what the HASAW Act position would have been pre vaccine. Albeit, on a common sense basis, it seems unlikely that a claim would have succeeded given how low Covid risk was for healthy working age people, even before vaccines were rolled out.

Of course there are excellent policy reasons why H&S law (which generally operates on a reasonable endeavours basis) couldn’t reasonably be construed to place an effectively impossible duty upon employers: to defy the laws of nature by preventing their employees from catching a disease that essentially spreads like the common cold. Then of course, it would be very difficult to establish causation: how would one prove they had caught Covid at work and not from a family member, someone in their local pub, supermarket etc?

Let’s hope no more time and money is wasted on spurious and vexatious claims of this nature: I rather suspect threat of job loss will be lenough to overcome any lingering “fear” of Covid for most, and the sooner attendance are work policies are robustly enforced again the better. The tail has been wagging the dog for two years now and it needs to stop.

 

[LAX54]

I have to disagree. Health and safety measures aren’t adopted on the basis of protecting people from feeling safe or unsafe. These measures, which lets not forget are often expensive and onerous, are put in place to address significant risk where it actually exists. The risk posed by Covid even pre vaccine was negligible, to all but the clinically extremely vulnerable. In the post vaccine world, where shielding ended long ago, it’s absolutely preposterous that compos mentis adults should continue to be scared of this virus. Colour me cynical but I suspect many of those claiming to be scared have another agenda and are perhaps hoping to gain some advantage, such as changing their working arrangements against their employer’s wishes.




I suppose I take a fairly hard nosed approach to this as someone who would have been sacked long ago if I’d stopped showing up to work because I felt scared! People basically need to accept if you do a job where you can’t work from home, you either suck it up and go to work, or you get another job!

I had an interesting situation yesterday - I boarded a railway replacement bus and sat near the front (as I tend to because I like to see out of the windscreen). There was no signage suggesting this wasn’t permitted. I was then rudely ordered to move further back by the driver; a request which I politely but robustly refused to comply with. I was over 2m away from the cab and he was behind a Perspex screen! He gave up and drove on when he realised he wasn’t going to get anywhere. I simply refuse to indulge peoples’ irrational hang ups over this any longer. My attitude is, if you don’t like working with people, don’t do a job which exposes you to the general public!

I did not realise until I saw a documentary on Freddie Mercury the other night, that since 1981 36 MILLION have died from HIV, and in 2017 1.8 Million had an infections and 940,000 sadly died, does that not put Covid into the shade somewhat ?
so far Worldwide 9.44 Million have died 'with' Covid, but maybe not 'from'

 

[Watershed]

The claim failed my smell test when I read the discussion at the beginning of the transcript about whether the hearing was in person or video based. The claimant was trying to over stretch the case by bringing in belief, when (for July 2020) an H&S case about risk would have been perfectly sufficient.

Now that the issue of Protected Beliefs has been dealt with, I’d be interested in the outcome of the substantive case.

Precisely my thoughts. As with many of these technical legal matters, it has been misreported in a lot of places.

The only determination that the judge made was that 'not wanting to come back into work, in an attempt to avoid Covid' isn't capable of being a quasi-religious belief, and thus there is no protected characteristic in holding that belief. Which is hardly a shocker.

Whether the claimant's alleged fear of immenent harm was justifiable is an entirely separate matter.

 

[richw]

As a train driver, absent a specific operational reason (eg someone playing music or otherwise causing a distraction), I do not have the jurisdiction to ask passengers to not sit near my cab. If I went around doing so (especially if I did it rudely) I’d be making my own working life needlessly unpleasant. I could also fully expect to be complained about and probably sworn at/assaulted when I approached the wrong person. I don’t see why a bus driver should be any different.

As a bus driver, I am behind a full Perspex screen.
My thoughts are spending time engaged with someone in conversation is exposing me longer to that person and any disease they may have. Why increase my own risk?

 

[island]

I think that anyone who wants to wear a mask should be allowed to do so — those living with someone severely immunocompromised can then try and avoid picking up colds, flu and whatever else is in circulation as well as Covid-19. Preferably the masks should be FFP3 or FFP2 like you say. The *2 ones being easier to get hold of as Boots and Superdrug sell them. I haven’t seen anywhere on the High Street selling the *3 ones.

FFP3 masks are readily available on Amazon, last I checked £14.99 for a pack of 10.