Employees Who Refuse to Work Over COVID Fears Can Be Docked Pay, Judge Rules

A U.K. judge has ruled that COVID-19 health and safety concerns regarding a return to the work place cannot be considered a belief and are not protected by the Equality Act of 2010.

This could mean that employers are granted stronger powers against employees who do not want to return to the office or workplace in the U.K.

Sitting at an employment tribunal hearing in Manchester, Judge Mark Leach also ruled workers could have their pay docked for disobeying calls back to in-person working.

The Times reported that the ruling came after a woman, whose identity was not revealed, brought a discrimination claim on the grounds that being forced to return to work was a breach of the Equality Act 2010.

Judge Leach rejected the claim after the woman refused to return to work after the restrictions from the first lockdown implemented in March 2020 in the U.K. were lifted.

During the hearing she said she "genuinely held a 'philosophical belief'" regarding her safety and returning to work to do her job. She said in July 2020 that she decided "not to return to the workplace on the grounds of health and safety."

She said her decision was justifiable as she "had reasonable and justifiable health and safety concerns about the workplace surrounding COVID-19." She said she feared getting the virus and passing it on to her partner who she claimed had a risk of becoming seriously unwell from COVID-19.

After informing her boss of the decision, the woman claimed he said: "I do not accept you had a reasonable belief that returning to work would put you or your husband in serious and imminent danger." She argued his response and behavior were discriminatory.

Judge Leach rejected the woman's claim that her position was a legally protected philosophical belief during a preliminary hearing. The judge ruled that she had exhibited "a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat."

Judge Leach added, her reaction could also be described "as a widely held opinion based on the information available that taking certain steps, for example attending a crowded place during the height of the pandemic, would increase the risk of contracting COVID-19 and may therefore be dangerous."

As the world now deals with the more contagious Omicron COVID-19 variant, some employers have again asked employees to work from home where possible.

The Society for Human Resource Management (SHRM) addressed the issue of employees not wishing to return to the office in the U.S. In an article SHRM have warned employers to tread carefully when dealing with this issue and to understand many employees have legal protections.

Quoting attorney Robin Samuel, the report said: "An employer usually can discipline workers for violating its attendance policy but there are exceptions to that rule. Putting hesitant employees on leave may be a better choice than firing them."

According to the report under the Occupational Safety and Health Act (OSHA), employees can refuse to work if they reasonably believe they are in imminent danger.

However, these employees must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time for this protection to apply.

Quoting Samuel again, the SHRM report said: "The employee can refuse to come to work if the employee has a specific fear of infection that is based on fact, not just a generalized fear of contracting COVID-19 infection in the workplace. Or if the employer cannot address the employee's specific fear in a manner designed to ensure a safe working environment."

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Stock image of a sign in an office. A UK judge has ruled that COVID-19 health and safety concerns regarding returning to the office cannot be considered a belief and are not protected by the Equality Act of 2010. Getty