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Refusal to wear a Covid mask was not a philosophical belief

Covid unpaid leave
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Peninsula Team, Peninsula Team

(Last updated )

The case of Mr P Burch v British Airways plc is a good example of how an Employment Tribunal (ET) will consider whether the philosophical belief test is met or not.

 The claimant, a pilot, was furloughed during the COVID-19 pandemic due to a significant downturn in operations. He was due to operate his first flight on 10 February 2022 to Miami as a training trip. On 9 February 2022 his training captain emailed to remind him that he would be required to wear a Covid mask in line with the respondent’s policy. The claimant had a major stress reaction and was consequently unable to fly. Later in February, when he did report for work, he did so without wearing a Covid mask and stated that he was exempt from doing so. The training captain did not accept this, and the claimant was stood down and placed on unpaid leave.

The claimant believes that as a ‘sovereign being’ he has a right to breathe freely and should not be subjected to what he considers to be arbitrary and pointless rules which have prevented him from doing so.

Claims of unlawful direct and indirect discrimination, and harassment were brought, and he sought to rely upon the protected characteristic of philosophical belief.

The ET first had to consider whether the reason why he refused to wear a Covid mask amounted to a philosophical belief. The ‘Grainger test’ had to therefore be considered by the ET, so called because of the case where these principles come from. The criteria for a philosophical belief are that the belief must be genuinely held; it must be a belief, not an opinion or viewpoint; it must be a belief as to a weighty and substantial aspect of human life and behaviour; it must attain a certain level of cogency, seriousness, cohesion and importance; and finally, it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Whilst they found that the claimant’s views were genuinely held, the ET established that it was a concept which did not affect how the claimant lived his life or perceived the world, except in a very narrow way. His dedication consisted of persistently not wearing a mask. No other facet of his life was involved. The claimant himself appeared to recognise that not wearing a mask could cause a problem to those who were vulnerable. The ET found that his belief was therefore in conflict with the fundamental rights of others so did not amount to a philosophical belief.

This case is a useful reminder that when a discrimination claim is brought, the first step for the ET to decide, usually at a preliminary hearing, is whether the definition of that protected characteristic is met. In this case, it was not, so the discrimination claims failed so will not progress any further.

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