Ms V Farmaki v Pearson Professional Assessments Ltd: 3305159/2022

EMPLOYMENT TRIBUNALS

Case No 3305159/2022

Between

Ms V FarmakiClaimant

Pearson Professional Assessments LtdRespondent

Before

Employment Judge Cowen

In person for claimant

Ms Stanley (instructed by counsel) for respondent

Date 16 December 2024

JUDGMENT

For the reasons given in an oral judgment on 16 December 2024

[1]The Claimant’s claims for religion/belief discrimination are dismissed. JUDGMENT having been sent to the parties on 9 January 2025 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

REASONS

Facts

[1]The Claimant started working for the Respondent as a part-time Test centre administrator at its Southgate test centre on 2 October 2019. The Respondent operates test centres around the UK and the world to carry out exam type tests.

[2]The Claimant’s employment included having to welcome, register and supervise candidates during their testing/exams.

[3]The Claimant resigned from her position on 4 May 2022, having issued her Tribunal claim on 28 April 2022.

[4]The claimant is a Greek Orthodox Christian.

[5]During the Covid 19 pandemic in 2020 – 2022, the test centre closed for a short period in Spring 2020. Subsequently, the Respondent was allowed by the Government to reopen them where they were required. This meant that measures had to be put in place to ensure the health and safety of both the public who visited the sites and also the staff, whilst they were at work. This was maintained by the Respondent, to the best of their ability, in a dynamic situation.

[6]When the test centre reopened the Respondent provided masks and visors to staff. The Claimant refused to wear a mask, opting to wear a visor at work. The Respondent also provided hand sanitising measures, as well as introducing a practice of cleaning surfaces regularly, reducing the number of people on site each day, and maintaining social distancing. As the Government regulations about workplaces evolved, so did the rules which the Respondent put in place. The Claimant was asked to undertake cleaning and sanitising duties, which she did rigorously, whilst some of her colleagues were less enthusiastic about doing so.

[7]In early 2021 a public vaccination programme was started in the UK. By late 2021/early 2022 a significant proportion of the population were vaccinated and the Government rules were changed accordingly.

[8]The Claimant refused to take the Covid vaccination. Her reason for this was because she considered that the information from scientists was confusing and that she did not see convincing evidence that she was not going to suffer other complications as a result of it. She told the Tribunal that as there was no guarantee of the safety, she could not take the risk of taking the Vaccine. She referred to seeing a friend die of a blood clot as a result of the vaccine. This helped to convince her not to take it. The Claimant also relied on the fact that she considered herself to be a healthy person and therefore not in need of reliance on a vaccine.

[9]In late 2021. the Respondent’s policy on vaccination was drawn up by the in house legal department. It applied to all those outside the USA. This was done in response to the changing Covid situation in mid- late 2021 as a result of the Delta variant of Covid, which was a more virulent strain. The policy was drawn up on a global basis, although the version put in place in the UK was different from that in the US. Each country’s policy was in line with the local requirements.

[10]The purpose of the policy was to “safeguard the health of our employees and their families, our customers and visitors, and the community at large.”

[11]The policy stipulated that it applied to all staff in all premises, including test centres unlike the Respondent’s previous policies. The policy required staff to go online into the Company HR portal, Fusion, and register whether they had had a Covid vaccine. Those who indicated that they had not, were asked to give a reason, which could be on medical, religious or other grounds. The Respondent indicated they would have an ‘accommodation process’ by which to make arrangements with those who were not vaccinated.

[12]The Claimant completed the initial form to indicate that she was not vaccinated. She had to be reminded on 2 separate occasions after 1 January 2022, (on 10 January and 7 February) to engage with the accommodation process that she was required to complete as a nonvaccinated member of staff. The Claimant ticked the box to indicate she had a religious reason for requiring an accommodation and provided her mobile phone number for contact.

[13]On 7 February 2022, Ms Fogarty (JF) HR Adviser, phoned the Claimant to discuss the reasons for her accommodation and discuss what might be agreed. In that call the Claimant described to JF that she felt that her religion gave her the ‘freedom to choose’ whether to have the vaccine. When asked to provide her reasons in writing the Claimant became agitated and refused to do so. JF suggested that the appropriate accommodation to allow the Claimant to comply with the policy would be to provide a lateral flow test to her manager each week. This was on top of the pre-existing requirements for masks and cleaning etc.

[14]The Claimant refused to agree with this and made no suggestion, when asked about what alternative accommodation she would agree to. This remained the Claimant’s position – she told the Tribunal that she did not consider that any accommodation should be made.

[15]JF told Balbir Kaur (BK), the Test Centre Manager about the Claimant and her unvaccinated status on the grounds of her religion, on 8 February 2022. JF explained that the Respondent needed to agree an accommodation with the Claimant, in order that they could protect all staff and visitors, but that this had not been possible. BK called the Claimant at home to speak to her. The Claimant also told BK that she was not willing to provide a lateral flow test each week, as she was “a healthy woman”. BK was also not able to agree any accommodation with the Claimant during this call, in which the Claimant shouted at BK. The Claimant texted BK after the call to confirm that she would not be taking the tests, because she “was not sick”.

[16]The following day, 9 February 2022, the Claimant sent BK an email saying that she was not willing to put her excellent health at risk by taking a lateral flow test. JF and BK believed the Claimant to have misunderstood the policy, as there was no known risk of taking such a test, given that it involved taking a swab from inside her nose. They asked to speak to her again the following day in the hope they could reason with the Claimant and come to some agreement.

[17]On 10 February 2022 the Claimant told JF and BK that she was out and would not be home until after 4pm, so a call was made later in the day. During this call the Claimant confirmed that she understood that the Respondent was not mandating that she take the vaccine, but once again suggested that taking a lateral flow test would affect her health. When asked what reasoning she had for this belief, the Claimant did not respond. She did not suggest to JF or BK that she was not allowed to do so as part of her religious belief. During this conversation the Claimant referred to the pandemic as ‘fake’. The Claimant told BK and JF that she was a fit woman and that the Respondent should not be asking her to ‘poke her body’. She said that BK should be more concerned about the fact that staff are not carrying out the cleaning duties appropriately.

[18]The conversation turned to what would happen if no accommodation was agreed. BK told the Claimant that she may be disciplined for failing to follow a reasonable management request. The Claimant refused to accept this and said she wanted to take annual leave. This was on Thursday 10 February, and the leave being requested was for Saturday 12 February. BK therefore declined the request saying she would not be able to find cover in such a short space of time. The Claimant remained rostered to work on the Saturday morning.

[19]On 11 February BK texted the Claimant to remind her that she should come to work the next day and to remind her that her leave had not been authorised.

[20]On 12 February Jason Tompkins-Arnold (‘JTA’), Regional Operations Manager, who was aware of the lack of agreed accommodation with the Claimant, decided that he would speak to her. He phoned her in work time at 8.30am but received no reply, so called again at 11am. This time he spoke to the Claimant and tried to explain to her the need for an accommodation. He too suggested that she needed to provide a weekly lateral flow test to her manager. The Claimant was resolute that she would not do this. She spoke of the Respondent being out to get her and indicated that she saw this as a campaign against her. The Claimant explained to JTA as part of the conversation that she travelled to work without a mask when on the bus. It was therefore the Claimant who raised the issue of using buses, not JTA. When the Claimant indicated that she was not willing to comply and therefore was looking for other work, JTA replied that he thought she would have the same problem elsewhere as many employers were adopting similar policies. JTA did say that if she left she would be at risk of making herself unemployed due to similar policies.

[21]At no point in the conversation did the Claimant make any suggestions as to any other accommodation which she would be willing to make that might satisfy the Respondent. Furthermore, the Claimant did not refer to her religious belief as a reason for not carrying out a lateral flow test. Nor did she suggest at that time taking unpaid leave.

[22]It became clear to JTA that the Claimant was not going to agree to take a lateral flow test. He therefore did, as he had been advised by HR, which was to enforce the Respondent’s policy. He did so by suspending the Claimant from work, pending an investigation. The reason for the suspension and investigation was a failure to follow a reasonable management request.

[23]On 14 February, the Claimant was sent a letter by JTA confirming her suspension and that she would remain on her full pay. The Claimant exchanged emails with JTA until 18 February in which she voiced her concern that applying this policy to her was unfair as it would be better to ask everyone to take lateral flow tests. She also indicated that she wished to end her employment and JTA asked her to confirm if she was resigning at that time. The claimant said she was not.

[24]After that the Claimant raised a grievance and it was dealt with by an independent manager, as was her appeal. Observations on Evidence

[25]The Tribunal heard live evidence from the Claimant and from four of the Respondent’s five witnesses. Ms Fogarty did not attend and therefore the weight given to her evidence was reduced. The witnesses all tried their best to remember the events which took place some 2 -3years ago

[26]The Claimant was a witness who was not willing to admit or concede any point, even when faced with documentary evidence such as the policy, she did not concede that an accommodation was required on religious grounds. The Claimant’s recollection was somewhat variable. During cross examination when she considered that the point would be adverse to her case, it was clear that she simply chose not to remember. Equally where she clearly thought of something which she thought would be adverse to the Respondent she was willing to add it in, such as the suggestion that she had offered to take unpaid leave, which she indicated in evidence showed that the Respondent had been foolish, as they had to pay her when she was suspended. The Tribunal considered the Claimant to be a witness who, whilst committed to her case, was not willing to be open to any inconsistency and was willing to embellish her evidence.

[27]The Respondent’s witnesses in contrast were professional, measured and consistent. Some were clearly nervous of facing questioning from the Claimant in the Tribunal, but did their best to recall what happened, or conceded where they could not do so with any clarity.

The Law

[28]s.10 ERA – religious or philosophical belief “Religion or belief(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

(3) In relation to the protected characteristic of religion or belief— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief; (b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.”

[29]ACAS Guide suggests that a religious belief ‘is an individuals’ own faith and how it affects their life’ and that ‘what makes up religious belief or practice may vary among people in that religion’.

[30]It is not for the Tribunal to decide what are, or are not core tenets of a religion according to Mba v LB Merton

[2014] ICR 357

, CA when considering an indirect claim. In Hussain v Bhullar Bros t/a BB Supersave EAT, the tribunal held that if a person genuinely believes that his or her faith requires a certain course of action, then that is sufficient to make it part of that person’s religion.

[31]The Tribunal must consider the genuineness of the belief by the Claimant; Moreover, theTribunal should consider this as an issue of fact. The assertion of a religious belief must be made in good faith, but it is not for the Tribunal to consider the validity of the belief. R (Williamson and other) v SOS Employment and Education

[2005] 2 AC 246

, HL

[32]However in Kosteski v Former Yugoslav Republic of Macedonia

[2007] 45 EHRR 31

the ECtHR said that: ‘In the context of employment, with contracts setting out specific obligations and rights between employer and employee, the Court does not find it unreasonable that an employer may regard absence without permission or apparent justification as a disciplinary matter. Where the employee then seeks to rely on a particular exemption, it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation when that claim concerns a privilege or entitlement not commonly available and, if that substantiation is not forthcoming, to reach a negative conclusion.’

[33]In Gareddu v London Underground Ltd

[2017] IRLR 404

, EAT the EAT said that Tribunal may inquire into whether the particular manifestation of a religious belief asserted by the claimant is genuine.

[34]Distinct from religious belief is philosophical belief – the leading case is Grainger v Nicholson

[2010] IRLR 9

which sets out the test in respect of identifying a philosophical belief covered by the Equality Act 2010. The Tribunal must consider if the stated belief; i) Genuinely held ii) Belief and not opinion or viewpoint based on present state of information iii) Belief as to weighty and substantial aspect of human life iv) Level of cogency, seriousness, cohesion and importance v) Be worthy of respect in a democratic society, not effect human dignity of conflict with fundamental rights.

[35]The Claimant told the Tribunal that she believes that everything that is consumed should be in moderation, including food.

[36]When asked about other medical tasks, the Claimant’s evidence was that she had received steroid injections into her hands in February 2023 due to pain in her hands, arms, shoulders and back, but distinguished this on the basis that she considered this injection to be ‘topical’. The Tribunal did not consider that this was a distinction which was reasonable or accurate.

[37]The Claimant also admitted that she had annual blood tests which required blood to be drawn from her. She did this to check her health (not to diagnose any specific ailment), but did not consider that this equated to the removal of something from her body, in the same way as a lateral flow test would require.

[38]She also referred to the fact that she had accepted anaesthetic in the past when having dental fillings. She therefore has had both chemical/medication injections and the withdrawal of blood before, when she considered it appropriate and necessary. This was also in direct contrast to her statement that God was the only lawyer, doctor or anaesthetist.

[39]When the Claimant explained to the Tribunal why she did not take the vaccine, her explanation was based on her reluctance to take the risk associated with a vaccine which may cause other complications. She described herself as a healthy person and that she did not see the need to compromise that. She did not say that her reluctance to take the vaccine was connected at all to her faith or religious belief. Specifically She did not say in evidence that it was because she did not want to have her bodily integrity compromised for religious reasons. Only that she was worried about any complication which it might cause.

[40]The Tribunal therefore did not consider that the Claimant’s assertion that she had a religious/philosophical belief in the sanctity of the body was one which was consistent in the Claimant’s life. The Tribunal concluded that the Claimant therefore does not hold this as a religious belief.

[41]It also does not fit the Grainger test on the basis that it was an opinion which the Claimant held in relation to a new vaccine at the time. It is not a view which she held in relation to all other medical treatments and tests.

[42]The Tribunal concluded that the Claimant’s refusal to take the vaccine, or to do a lateral flow test was a choice that she made because she did not want to take it, not because she had a more general view. This was not a genuine belief in a religious reason to resist. It also was an opinion on a particular vaccine and test, and not a wider view on a weighty and substantial aspect of human life. For all these reasons the Claimant’s first belief did not meet the criteria and was dismissed. 2 - A belief based on science that the vaccine and lateral flow tests are not effective;

[43]The Claimant provided no evidence to support this belief. The Claimant said that her belief was based on science, and therefore the Tribunal expected that she would be able to provide evidence of it. Unfortunately the Claimant chose not to do so. Nor did the Claimant provide any evidence from which the Tribunal could consider that her belief, which she espoused to be based on science, was a religious belief.

[44]The Tribunal were satisfied that the Claimant genuinely believed that the vaccine and lateral flow test made no difference to the risk of catching or dying of Covid. The Claimant stated as much in her evidence. However, the fact that the Claimant had that belief did not prove that it was a religious belief.

[45]The Tribunal had therefore also considered whether it might amount to a philosophical belief. The test in Grainger was applied as follows; 1) the Claimant did genuinely believe that these would not protect her from Covid and therefore they were ineffective. She had been consistent in espousing this belief. 2) The Claimant said that her belief is based on science. No evidence of the science was produced. The Tribunal could only conclude that this was the Claimant’s view of any science which she has seen. It is therefore her opinion. In Mclintock v Dept Constitutional Affairs Elias J said “it is not enough ‘to have an opinion based on some real or perceived logic or based on information or lack of information available’. Further her belief was only about the Covid vaccine and lateral flow test and was not a general position on all medical intervention and therefore could not be said to be a general world view. 3) Weight and substantial – the Claimant’s view was in relation to this one virus and the measures available at the time. It was not a view that stretched to any other type of medication or procedure. 4) Cogency, seriousness, cohesion and importance – whilst important and serious at the time, the Claimant’s view lacked cogency as she held this view only with reference to the Covid vaccine and lateral flow test, not in relation to any other medical treatment. It could not amount to a philosophical belief, when it was such a specific and singular point. 5) The Tribunal concluded that it was not necessary to consider whether it is worthy of respect in a democratic society.

[46]This is neither a religious nor a philosophical belief which is covered by s.10. The aspect of the claim is also dismissed. 3 - Claimant’s belief that they exploit Christian values of helping neighbours

[47]The Claimant’s explanation of this was that she needs to help her neighbour to be a Christian and that she cannot do this if she does not see them face to face. The Tribunal did not consider that this answer was relevant in respect of either the vaccine, nor the lateral flow test that the Respondent was requesting.

[48]It appeared that the Claimant was unable to justify this in any other manner. The Tribunal concluded that this did not amount to a religious belief, as it was a belief which related only to this vaccine and lateral flow test and not to medical procedures and medications generally.

[49]The Claimant’s evidence that help can only be given face to face is not relevant to whether she had a lateral flow test or not.

[50]However, the Tribunal accepted that the Claimant might genuinely have believed this, that is not sufficient to amount to a religious or philosophical belief. The Tribunal considered that this was the Claimant’s opinion or viewpoint and not one which she suggested was held by others.

[51]In X v Y case 2413947/20 a Tribunal found that X’s belief in a fear of catching Covid and need to protect herself was not a protected belief. X relied on this as a reason not to return to work on the basis of health and safety grounds. The Tribunal found that it was not a belief as set out under the second limb of Grainger test. It was instead a reaction to a threat of physical harm and the need to take steps to reduce or avoid the threat.

[52]The Tribunal considered that this case was similar, but that the Claimant held the opposite views to X. The principle remained the same and this Tribunal found that the Claimant’s view was an opinion and not a belief in a philosophical tenet.

[53]The Tribunal concluded that none of the Claimant’s asserted religious beliefs amount to beliefs which are protected under s.10 Equality Act 2010.

[54]If for any reason the Tribunal is in error, they went on to consider the facts as follows; Direct/Harassment

[55]There was a conversation on 8 February between the Claimant and JF in which JF asked the Claimant to explain the basis of her religious accommodation application. The Claimant said during the conversation that she could write about it – it was not JF who asked for this. In any event the Claimant did not provide anything in writing. Nor did the Tribunal find that JF say that this was the CEOs personal decision. She did say there were no plans to cancel the policy soon, as she would not have known what was going to happen next in terms of the spread of Covid virus. Direct discrim

[56]The Tribunal found that this conversation did happen and it was due to the Claimant’s religion, because she required an accommodation to the Respondent’s policy. The reason for the conversation was therefore due to the need to comply with the policy. The Tribunal were satisfied that this did not amount to less favourable treatment than would have been afforded to anyone of another religion, or none, who had asked for an accommodation under the policy. They too would have been called and asked to disccuss how the Respondent could accommodate them.

[57]The Tribunal found there was no discrimination and dismissed this allegation. Harassment

[58]The Tribunal concluded that this conversation did not amount to harassment. The Claimant may not have wanted to have the conversation but it did not have the purpose of intimidating, degrading, humiliating or creating a hostile or offensive environment for the Claimant. Nor in the Tribunal’s view did it reasonably have that effect. Both the Claimant and JF knew they were talking because of a policy and that some measure of accommodation was required to be agreed. It was therefore not reasonable for the Claimant to consider herself intimidated/ harassed by anything said by JF in this conversation.

[59]The Tribunal found that there was a conversation on 10 February between the Claimant, JF and BK. The purpose of the call was to try to explain to the Claimant why she needed an accommodation under the policy. The reason for the accommodation, was due to the Claimant asserting a religious objection. The conversation was therefore due to the Claimant’s religion, but the actions of JF and BK in the conversation were not due to her religion.

[60]The Tribunal did not accept that there was evidence of JF or BK insulting the Claimant’s personality, as alleged. JF and BK did explain to the Claimant that this policy was being applied globally, but did not do so either due to the Claimant’s religion or belief, or with the purpose of causing her to be intimidated or harassed.

[61]Whilst the Claimant was upset by this conversation this was due to her resolute opposition to the policy and not due to her religious belief. The Tribunal do not consider this amounted to bullying on the grounds of religion. The Tribunal were satisfied that the policy amounted to a reasonable management request during the pandemic.

[62]The Tribunal concluded that on a balance of probabilities the Claimant was told that the Respondent have their policy and there was no plan to change it. This did not amount to harassment on grounds of religion or belief. Nor was it said because of the Claimant’s religion or belief.

[63]Had the Claimant engaged in this conversation in a constructive manner to find a solution to the accommodation problem, then this may have been avoided. Unfortunately due to the Claimant’s point of view and failure to engage in this way, no agreement was made.

[64]This allegation was dismissed in both direct discrimination and harassment.

[65]The Tribunal found that BK sent the Claimant a text message to remind her to come to work. This was because the Claimant had asked for annual leave during their conversation the previous day, but BK had declined it. She therefore wanted to ensure that the Claimant would understand that she remained rostered to work. She also wanted the Claimant to be available to speak to JTA.

[66]The Tribunal were satisfied that this act was not done by BK because of the Claimant’s religion or belief. It was done for management reasons, namely to ensure the Claimant attended work. Nor did it amount to conduct which was intimidating, hostile or degrading to the Claimant, nor on grounds of her religion/belief.

[67]This allegation was dismissed in both direct discrimination and harassment.

[68]The Tribunal found that the Claimant’s conversation with JTA was his attempt to resolve the issue which others had not achieved. It was not JTA who first referred to using buses, that was raised by the Claimant. The comments about everyone will have similar policies and that the Claimant might find herself unemployed were said, on a balance of probabilities. However, the Tribunal concluded that none of these were said due to the Claimant’s religion/belief. They were part of the conversation about making an accommodation for the Claimant, so she could continue to work as an unvaccinated person. Even if the Claimant found it intimidating, the Tribunal considered that would not have been a reasonable position for her, as she was the one who raised the issue of taking buses and also suggested she was looking for another job. Most relevant though is the fact that none of the comments were on grounds of her religion or belief. They were all related to her refusal to engage with the accommodation process. i.e. a management order.

[69]The Claimant was suspended for not carrying out a reason management request. The Tribunal were satisfied that this did happen. The Claimant suggested that it was done due to her religion/belief. JTA’ evidence was preferred by the Tribunal – where he said that as a result of not being able to agree an accommodation with the Claimant, he was advised by a case manager that the policy should be enforced. This meant the Claimant was suspended pending the investigation of her refusal to engage with the accommodation process. The Tribunal is satisfied that this was not an act of harassment, as it was not on grounds of her religion/belief and was within the Respondent’s policy and process to do so. Nor was it less favourable treatment, as anyone who failed to engage with the policy would be subject to suspension and investigation.

[70]This allegation was dismissed in both direct discrimination and harassment. Indirect Discrimination

[71]The Claimant asserted that the PCP was the vaccination policy which required employees to have a vaccination and to take a lateral flow test in order to come to work.

[72]The Tribunal found as a fact that this was not what the policy stated. The policy stated that employees must indicate whether they are vaccinated. If they were not, then they must agree an accommodation with their manager, which may involve taking a lateral flow test each week.

[73]The Tribunal concluded that the alleged PCP did not apply to the Claimant, nor to anyone else in the company.

[74]The claim therefore fails on this first stage of the process.

[75]Even if the PCP had been drafted to reflect the correct wording of the policy, the Tribunal were of the view that the Respondent’s professed legitimate aim of ensuring the wellbeing and health and safety of its employees and the members of the public attending the Respondent’s test centres in person during the pandemic was legitimate. The government regulations were in place, and advice on how to ensure the health and safety of those working and using the premises were in place.

[76]The Tribunal also considered that the policy and the enforcement of it was proportionate to the discrimination caused to the Claimant. The policy was there to protect staff from spreading the disease to each other or to the customers and vice versa. What was being asked of staff was not onerous. It was only to declare what they had decided to do themselves, it was not to mandate that they must be vaccinated. The suggestion of a lateral flow test was also not obligatory and was no more than individuals were being asked to do before attending other public places and appointments in healthcare environments at the time.

[77]Finally the Tribunal also noted that the Claimant did not suggest any less discriminatory way of achieving the aim. The Claimant made it clear that she considered she should take no further steps at all.

[78]The needs of the parties indicated that the Respondent had to consider the rights and health and safety of a large number of people, as well as the potential consequence if Covid were to spread amongst its staff. The Tribunal were satisfied that it was proportionate for them to attempt to control the spread as much as they could, whilst trying to maintain their business and what is a public service.

[79]The Tribunal therefore found the claims of direct discrimination, harassment and indirect discrimination all failed and the case was dismissed. Approved by: