While hybrid working continues as we slowly return to normal life, and as policy makers contemplate the implementation of vaccine passports for certain events and mandatory jags (or jabs) for some health and care sector staff, employers will be considering issues about vaccine status in the context of COVID-safe workplaces and employee wellbeing.
Employers have health and safety duties to their employees and the people that they come into contact with, to minimise the risk of exposure to COVID-19. The nature of some workplaces, such as frontline health service or care homes for the elderly, may mean that vaccination as a precondition of work in some roles could potentially be justified on health and safety grounds.
However, ACAS has taken the view that employers are not able to require employees to take the vaccine. There are many reasons why workers may choose not to take a vaccine. These could include medical advice, previous exposure, and the desire to retain autonomy over medical choices or to wait for more evidence of safety. There is also a minority who are vehemently opposed to the vaccine, believing it to be a government conspiracy. A possible consequence could be that some employees are treated differently by employers, or where employees have strong, opposing views on vaccines, allegations of bullying or harassment.
The Equality Act 2010 gives workers certain protections, including the right not to be discriminated against by their employer, or harassed by colleagues, on the basis of their religion or belief. Religion or belief is a protected characteristic under s 4 of the Act, s 10 of which defines a belief as “any religious or philosophical belief” including “a reference to a lack of belief”. Where a philosophical belief is protected, any detriment suffered by an employee as a result could amount to unlawful discrimination.
Given the proliferation of strongly-held anti-vaccination beliefs and more militant “anti-vaxxer” movements which have gained prominence on social media during the pandemic, employers may find themselves faced with the question: can an employee’s anti-vaccination belief be a protected belief under the Equality Act?
When is a belief protected?
In Grainger plc v Nicholson  ICR 360, which concerned a philosophical belief about climate change, the Employment Appeal Tribunal (“EAT”) set out five criteria to be satisfied for establishing a protected belief. These are that the belief must: (i) be genuinely held; (ii) be a belief rather than an opinion or viewpoint based on the present state of information available; (iii) have a weighty and substantial aspect of human life and behaviour; (iv) attain a certain level of cogency, seriousness, cohesion and importance; and (v) be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
This test has been applied to a broad range of beliefs, with mixed results. For example, in Farrell v South Yorkshire Police Authority, ET2803805/10 (16 June 2011), the Employment Tribunal held that an employee’s beliefs that the 9/11 and 7/7 terrorist attacks were “false flag operations” authorised by the US and UK Governments were not philosophical beliefs capable of protection against discrimination. However, in McEleny v Ministry of Defence, S/4105347/2017 (25 July 2018), the employment tribunal held that the claimant’s belief in Scottish independence did amount to a philosophical belief, meaning that it could be relied upon by the claimant as a protected characteristic for the purposes of claiming direct discrimination. (The claim was subsequently dismissed after evidence was heard: judgment of 27 August 2019.)
The EAT recently ruled, in Forstater v CGD Europe, UKEAT/0105/20/JOJ (10 June 2021) that gender-critical views are capable of protection under the Equality Act, overturning an Employment Tribunal decision that the claimant’s belief – that being male or female was an immutable biological fact – was not compatible with human dignity or worthy of respect in a democratic society.
In the case of Conisbee v Crossley Farms Ltd, 3335357/2018 (10 September 2019), one of the issues for determination was whether or not vegetarianism is capable of satisfying the requirement and definition of being a philosophical belief under the Equality Act. However, the Employment Tribunal was not so persuaded, finding that the vegetarianism lifestyle choice was not weighty or serious enough to amount to being a protected characteristic. The tribunal contrasted vegetarianism with veganism, where it observed there was a “clear cogency and cohesion” in the belief. Ethical veganism was subsequently held to be a philosophical belief which qualifies as a protected belief within the meaning of s 10 of the Equality Act in the more recent case of Casamitjana v League Against Cruel Sports  UKET 3331129/2018 (21 January 2020).
And the anti-vaxxer?
As to whether being anti-vaccine is in itself capable of protection, taking into account the factors considered in these and other employment tribunal cases, an employee would have some difficulty in overcoming all five hurdles laid down in Grainger. Even proceeding on the basis that it is a genuinely held philosophical belief, and notwithstanding the dedication of some to the anti-vaccine cause, a tribunal would require significant persuasion that it is not simply a viewpoint or some irrational opinion, given the weight of scientific evidence in support of taking the vaccine.
If a tribunal were so persuaded, does the belief attain a certain level of “cogency, seriousness, cohesion and importance”? For some, the anti-vaccine movement is rooted in the desire to protect civilians from infringements to their freedoms. On one view, it could therefore be said to be a weighty and substantial aspect of human life and behaviour. But for others, the concerns relate to the role of “big pharma” or the “genocide” of children. As in Conisbee, there appears therefore to be a lack of cogency and cohesion required to meet the threshold, having regard to the apparently numerous, differing and wideranging reasons for adopting the anti-vaccine position.
Finally, as to whether an anti-vaxxer claimant’s views be considered worthy of respect in a democratic society, according to the EAT’s decision in Forstater a philosophical belief would only be excluded from protection if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under articles 9 and 10 of the European Convention on Human Rights. It is arguable that an employee’s anti-vaccine belief – notwithstanding its potential in extreme cases to result in the harassment of others – would not fall into that category. On the other hand, a tribunal could find that conspiracy theories about a vaccine which has been trialled and approved by independent medical experts are not entitled to such protection.
On balance therefore, it is unlikely that it would amount to a philosophical belief capable of protection under the Equality Act 2010. As the debate continues, however, we may yet see the issue come before a tribunal for determination.
Debbie Fellows, Employment Law partner, and Baktosch Gillan, Employment Law trainee solicitor, Thorntons
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