The employment tribunal was recently asked to consider the question of whether an airline pilot’s belief about the ‘right to breathe freely’ was a belief for which he should have legal protection against discrimination for holding that belief.

Mr Burch claimed that he held the belief that ‘he is a sovereign being who has a right to breathe freely and should not be subjected to arbitrary and pointless rules which have prevented [him] from so doing, whilst having no basis in science and for which there is no supporting evidence’.

The case of Mr P Burch v British Airways Plc. involved an airline pilot who claimed he had been discriminated against in being asked to wear a face mask during the Covid-19 pandemic, whilst flying passenger jets. Mr Burch claimed that his belief was protected by law and that he should not be subject to British Airway’s policy on mask-wearing because of that belief.

There have been several high-profile cases recently on what amounts to a protected belief under the Equality Act, and as with those cases, the tribunal had to apply a well-established legal test set in the case of Grainger PLC v Nicholson from 2010. There are five stages to that test, and an individual has to meet all five stages for their belief to be protected. Those five stages are:

1. The belief must be genuinely held
2. It must be a belief and not an opinion or viewpoint based on the present state of information available
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour
4. It must attain a certain level of cogency, seriousness, cohesion and importance
5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

Whilst the tribunal found that Mr Burch’s belief was genuinely held, it was against him on the other four stages of the legal test.

The tribunal found that Mr Burch’s belief was formed after having read several articles on the subject (and so it was a viewpoint based on the present state of information available). When asked if he would change his mind if a scientific study showed masks were effective, Mr Burch said “not necessarily”. The judge said they would have expected the response to have immediately been ‘no’ if this were a belief.

On the third stage of the test, the judge noted that Mr Burch’s belief was narrow, in that it did not affect how he lived his life or perceived the world. It did not relate to other aspects of daily living such as diet, clothing, financial needs and relationships. It was not ‘at the heart of interaction between humans’.

In dealing with the fourth leg, the tribunal questioned why if the belief was one of seriousness and importance, Mr Burch’s solicitors had not mentioned this in a letter they wrote to BA about his situation, instead referring to Mr Burch having a disability that prevented him from wearing a mask, rather than or as well as his belief.

For the final stage in the test, the tribunal found that his belief was in fundamental conflict with the rights of others (including under the European Convention on Human Rights – Article 2, the right to life). Mr Burch accepted that he might not know if he was infected with Covid-19 and that he could spread the virus which might cause others to become infected and die.

This case adds to the growing number of decisions coming from tribunals that are hearing cases on how conflicting rights should be balanced relating to health and safety measures and an individual’s rights when being required to comply with those measures. Here at Anthony Collins, we continue to assist employers across our sectors with defending claims relating to the interaction of those two competing elements – please contact us if you need assistance with this or any other type of employment litigation.