A landmark decision – and first definitive ruling – of the Isle of Man Employment and Equality Tribunal (the “Tribunal”) regarding the interpretation and application of section 7 (Disability) and section 11 (Religion or Belief) of the Equality Act 2017 (the “Act”).
Mr Mincher filed a complaint with the Tribunal against Manx Care (the “Respondent”) on 21 April 2022 following in-patient treatment at Nobles Hospital on 25 and 26 October 2021 relating to suspected appendicitis and acute spinal pain. At that time, special measures were operative relating to Covid-19, including the requirement to wear a face mask.
Whilst in hospital, Mr Mincher refused a Covid-19 swab by asserting his right, as a patient, to decline any medical procedures (to which, in view of the requirement for consent and the ethical position, staff could not force him to submit). As a result, Mr Mincher alleged that he was, amongst other things, denied essential and urgent treatment amounting to discrimination against the protected characteristic of religion and belief. Mr Mincher further alleged that (i) he was refused pain relief which amounted to – in his opinion – harassment due to hospital staff failing in their duty to relieve suffering; (ii) unlawfully detained when he expressed a desire to leave the hospital; and also that hospital staff (iii) failed to remove a cannula despite repeated requests; (iv) refused to perform diagnostic procedures such as ultrasound; and (v) forced him to wear a face covering notwithstanding that he was medically exempt.
On 26 October 2021, Mr Mincher discreetly left the hospital during visiting time without indicating to hospital staff that he was doing so. His cannula (which was still in place) was later removed at home by a paramedic fast-response vehicle. Mr Mincher alleged that hospital staff indirectly threatened him with police action to unlawfully return him to hospital.
The Respondent confirmed that an infection control policy was in place at that time and that any patients who refused a Covid-19 swab were to be nursed in isolation from other patients for a period of 14 days. The Respondent denied Mr Mincher’s allegations, although did confirm that he refused a Covid-19 swab and that hospital staff had contacted the police on 26 October 2021 to check on Mr Mincher’s welfare (in contrast to threatening him with the police, as Mr Mincher had alleged).
The Respondent further denied that Mr Mincher had been compelled to undergo a Covid-19 swab as a condition of emergency or urgent treatment. Moreover, the Respondent asserted that Mr Mincher had neither been denied treatment on account of his refusal to wear a face mask or by his refusal to provide a biological sample.
In support of his complaint, Mr Mincher explained to the Tribunal that he held syncretic (multi-faith) beliefs of Christian Spiritualism with aspects of Hinduism and that he had started practising his faith some 15 years earlier. Mr Mincher further noted his qualification in herbalism and role as a community herbalist helping others by providing natural remedies via his at-home apothecary. Mr Mincher claimed that his beliefs and cultural values “prohibited” modern, invasive or chemical-based medicine, where possible, albeit there were small exceptions to this, including pain relief or the taking of a blood sample if absolutely necessary.
Mr Mincher said that, during his stay in hospital, he refused an MRSA swab and Covid-19 swab on the basis of his religious and cultural beliefs, i.e. because these were considered ‘invasive’ procedures. Mr Mincher did eventually accept an MRSA swab as it was less invasive than the Covid-19 swab which required a “man-made object” to be inserted into his nose. Mr Mincher further asserted that he had post-traumatic stress disorder from an unrelated accident 8 months prior, which made him exempt from wearing a face covering.
Subsequently, Mr Mincher brought a variety of claims including discrimination on the grounds of religion and belief and disability; victimisation; harassment; failure to make reasonable adjustments; unlawful detention and breaches of the Human Rights Act 2001.
The burden of proof was on Mr Mincher to establish, on the balance of probabilities and at the relevant time, facts from which (absent any other explanation) the Tribunal could infer that an unlawful act or acts of discrimination had taken place. This meant that Mr Mincher had to produce evidence that he had been treated less favourably because of his claimed disability and/or due to the religious and other protected philosophical beliefs which he asserted he held.
The case also turned on whether “disability” was established for the purposes of the Act bearing in mind that, to meet the applicable legal test, a claimant has to show a physical or mental health impairment that is both substantial and long-term which adversely impacts his or her ability to carry out day-to-day activities. Having considered the circumstances (and taking account of Cabinet Office guidance on “disability”[1]), the Tribunal ruled that Mr Mincher did not have – at the relevant time – an impairment that was substantial. On this basis, the Tribunal did not also need to decide whether the effect of the impairment was long-term.
Turning to his religious beliefs, The Tribunal had to determine whether Mr Mincher was entitled to rely on his religious beliefs as a “protected characteristic” for the purposes of his complaint. This involved considering the degree and connection between such faith and Mr Mincher’s attitude to modern medicine. The Respondent submitted that Mr Mincher’s views of Covid-19 swabs was merely an opinion or point of view and therefore did not meet the test.
The Tribunal did not doubt the sincerity of Mr Mincher’s various beliefs and so the question was whether they were sufficiently weighty and deserving of being protected under the Act. In reaching its conclusion, the Tribunal considered the UK Code of Practice for the Application of the Equality Act 2010 and the Grainger principles (UK case law) given the equivalence of the Isle of Man provisions to the UK legislation. Amongst other things, the Tribunal found that Mr Mincher’s religious or philosophical beliefs did not meet the test of being “cogent, serious, cohesive and important” when applied to the issues at the hospital.
Moreover, the consistency of Mr Mincher’s position on the evidence was questionable. For instance, in refusing the Covid-19 swab, Mr Mincher was unable to identify any “other procedures” he had actually declined, save for the MRSA swab to which he had ultimately consented. Also, Mr Mincher confirmed that he took prescribed medication (rather than herbal remedies) to avoid feeling drowsy when driving in order to protect the wider public. The Tribunal considered that this conflicted with his refusal to take a nasal swab for Covid-19 or wear a face mask around vulnerable people.
In summary, therefore, the Tribunal found that there was no substantial mental or physical impairment of a level to meet the requirements of the Act (ie disability to the standard required was not proved) and, further, that Mr Mincher’s religious or other beliefs were not protected by law.
This case illustrates that, while a claimant may assert unlawful discrimination has taken place, the specific facts and legal tests require proper consideration as not all treatment perceived to be unfair either is or is by reference to a protected characteristic.
For further information or if you require any employment related advice, please reach out to Katherine Sheerin or Kirsten Porter.
A copy of the Tribunal’s decision can be found here:
[1] https://www.gov.im/media/1367732/271119-equality-act-2017-guidance-on-the-definition-of-disability.pdf
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