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For the vast majority, the rollout of various Covid-19 vaccinations is a welcome glimmer of hope in what has been a very difficult 12 months. For a small, but vocal, minority, the vaccination programme does not offer the chance to return to normality, but is part of a dangerous conspiracy. Should employers be nervous about discrimination claims involving staff who buy into “anti-vaxx” conspiracy theories?
The anti-vaxx movement is one that employers may well come across, and raises a number of issues for employers in the context of the current pandemic:
The Equality Act 2010 gives employees certain protections at work, including the right not to be discriminated against by their employer, or harassed by colleagues, on the basis of their religion or belief (as “religion or belief” is a protected characteristic, in the same way as race, sexual orientation and sex are). But the Equality Act 2010 does not give a clear definition of what either a religion or belief is; in the case of the latter, it is said only to be “any religious or philosophical belief” (or a lack thereof).
This has meant it has been down to the courts and employment tribunals to determine what counts as a philosophical belief that is protected by the Equality Act. Many of the early cases in this area focussed on political beliefs. The general orthodoxy is that someone is not protected under the Equality Act 2010 simply by virtue of belonging to a particular political party (although a belief in a political theory might be protected). But the last few years have seen a number of high-profile cases in the employment tribunals about non-political beliefs, including in relation to vegetarianism, ethical veganism, transgenderism, and even the right to own copyright in one’s own work.
Broadly, to be protected under the Equality Act 2010, case law says that a philosophical belief must satisfy five criteria:
1. The belief must be genuinely held
This will often be a relatively easy hurdle for a claimant to get over. At this stage, an employment tribunal will not look into whether a belief is rational or consistent, or whether it should or could be held based on a particular text or doctrine, but only whether the individual did, in fact, hold the particular belief alleged.
2. The belief must be a belief and not an opinion or viewpoint based upon the present state of information available
For example, a Justice of the Peace who objected to sitting on any adoption panels which might place children with same sex parents did not have a protected belief. He had a view, based on his position that there was insufficient evidence available, that same sex adoption was a “social experiment”, and that it might not be in a child’s interests. But, the Employment Appeal Tribunal held, this was not a belief, merely a viewpoint he held at that time, based on the evidence (or lack of evidence) available.
3. The belief must be a belief as to a weighty and substantial aspect of human life and behaviour
Whilst being a member of a political party is unlikely to amount to a philosophical belief, belief in particular political causes might. For example, a Scottish employment tribunal found that belief in Scottish independence was a substantial aspect of human life and behaviour, because it involved “fundamental questions” of sovereignty, self-determination, governance and how decisions are taken. It did not have to be of importance to people everywhere (e.g. just because someone in Tanzania might not be concerned with Scottish independence, that does not mean that the issue does not affect “human life and behaviour”).
4. The belief must attain a certain level of cogency, seriousness, cohesion and importance
An employment tribunal found in 2019 that vegetarianism did not satisfy this requirement. Vegetarianism was described as a “lifestyle choice” with various factors motivating those who followed it, including health, diet, concern about the way animals are reared for food, and personal taste.
However, the same employment tribunal judge found in a separate case that “ethical veganism” did have the requisite level of cogency, seriousness, cohesion and importance (namely that it was “…a philosophy and a way of life which seeks to exclude as far as possible and practical all forms of exploitation and cruelty to animals…”). My colleague Sumaiyah Arshad-Khan looked at that case, and its implications, in more detail last year.
5. The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others
The final criterion can be the most difficult, because it may involve a conflict between competing beliefs or the rights of others. For example, an employment tribunal found that a claimant’s alleged belief (i.e. “that ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’, [and that] being female is an immutable biological fact, not a feeling or identity…”), conflicted with the fundamental rights of trans people who had attained a Gender Recognition Certificate after transitioning (which the claimant did not accept changed a person’s gender for all purposes).
The employment tribunal found the claimant’s views were “incompatible with human dignity and fundamental rights of others”. In the employment tribunal’s view, the claimant’s “absolutist” views, and that she would refer to a person by the sex she considered appropriate, were not worthy of respect in a democratic society.
It seems unlikely that an anti-vaxxer conspiracy theorist will be able to satisfy an employment tribunal that their beliefs satisfy all of the five tests above (although those who refuse vaccinations for other reasons, such as on health grounds or because of religion, may be protected under other provisions of the Equality Act 2010). Proving that they have a belief (as opposed to a mere opinion or viewpoint based on evidence) that vaccination is dangerous, is likely to be difficult.
Further, based on the various conspiracy theories circulating amongst the anti-vaxx movement, it is unlikely that these views could be considered to attain a certain (or, indeed, any) level of “cogency, seriousness, cohesion and importance”. That is particularly true given the wide-ranging reasons that some anti-vaxxers give for their views (e.g. governments trying to control individuals with microchips, using vaccines as a way to limit personal freedoms, or “big pharma” trying to make money). On this point, an employment tribunal may well adopt the same approach as that taken in the vegetarianism, as opposed to veganism, cases discussed above.
Finally, it would be a brave judge who would find that a conspiracy theory about a rigorously trialled vaccine was worthy of respect in a democratic society, particularly given the extreme public health emergency we are currently in. So, whilst employers should be careful of an employee’s rights under their employment contract, and the right for employees with two years’ service not to be unfairly dismissed, it is unlikely that they will face any viable claims by anti-vaxxers under the Equality Act 2010 on the grounds of protection of philosophical belief.
22 January 2021
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