A care home operator had the right to dismiss employees who refused to be vaccinated against Covid-19, an employment tribunal has ruled.
Barchester Healthcare, the second largest care home provider in the UK, implemented a “no jab, no job” policy in 2021 after seeing around 10% of its residents and several staff members die following Covid-19 infection in 2020.
Several former employees, including care assistants, laundry staff and a nurse, lodged claims for unfair dismissal and religious or belief discrimination against the company after they lost their jobs for refusing to get the vaccine.
Barchester Healthcare argued that its residents faced a higher risk of becoming ill from Covid because of their age and health. Although enhanced hygiene measures and PPE was in place to reduce the risk of transmission, these had only been partially effective.
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It was difficult to ensure social distancing was maintained, as many residents had dementia and care assistants needed to be in close contact with residents. Kitchen staff would also interact with residents to discuss food preferences and needs, while laundry staff were required to bring clothes and bed linen to residents’ rooms using shared lifts.
The company considered that healthcare workers had a “professional responsibility” to accept the coronavirus vaccine when offered. It also recognised that it needed to minimise staff absence, as staff shortages could present a danger to residents.
In January 2021 it published a vaccine policy which provided that any new staff would need to be vaccinated against Covid-19 . It would only promote people or pay discretionary bonuses to existing staff who were vaccinated.
In February 2021 it announced it would make vaccination a condition of employment for all staff. People with a legitimate medical reason, such as an allergy to the vaccine, supported by a letter from their GP, would be exempt, as were pregnant employees.
Staff were told that if they were unwilling to get the vaccine voluntarily and were not exempt, they would be subject to investigation under the respondent’s disciplinary procedures and could potentially be dismissed. They were given two months notice to get their Covid-19 jabs, with the policy taking effect on 24 April 2021.
Later in 2021 the government made it mandatory for all frontline NHS staff and care workers to get the Covid-19 vaccine, however this was subsequently withdrawn.
The claimants
One of the claimants, Mrs Motiejniene, refused to take the vaccine as she believed God would protect her and that her belief constituted a philosophical belief under the Equality Act 2010, while another, Miss Chadwick, claimed she had a philosophical belief of “my body, my choice”.
Mrs Hussain, a laundry assistant, claimed she had previously suffered an allergic reaction to medicine in the past, but could not confirm this with paperwork from her GP. She later disclosed that she was refusing the vaccine based on her philosophical belief in body autonomy and her Muslim faith, which strongly opposes vaccines that use “abortive foetal medical cells genetically modified by science”.
Care assistant, Miss Masiero, objected to getting the vaccine on the because of her Christian faith, which encompasses the belief that God created the human body with an immune system necessary to survive, while a nurse, Mrs Dimitrova, said she did not trust the vaccine.
In their cases before the tribunal, which were considered together, many of the claimants relied on Article 8 of the European Convention on Human Rights, which concerned the right to respect for private and family life. Hussain and Motiejuniene relied on Article 9, which ensures the right to freedom of religion or belief.
The risk to life was far from remote. The respondent had seen the actual affect of Covid within its care homes” – Judge Maidment
The tribunal found that the reason for the claimants’ dismissal from Barchester Healthcare was genuine. It felt the company adopted fair procedures in the way it dealt with their dismissals, so their unfair dismissal claims could not succeed.
Hussain’s and Motiejuniene’s claims of direct and indirect religion and belief discrimination also failed, as did Motiejuniene’s claim of religion and belief-related harassment, as the tribunal noted that both Christians and Muslims had taken the vaccine in huge numbers.
Judge Neil Maidment says in his judgment: “[Barchester Healthcare] never proposed, for instance, vaccination by force.
“It was at pains, throughout the introduction of the policy, to reaffirm that it recognised vaccines could not be mandated, that vaccination was the choice of the individual, that consent had to be given freely and consent to future vaccinations could be withdrawn at any stage.
“Vaccination was not at this point in time mandated by law, but vaccination was not physically forced upon any of the claimants. While they would not have judged it as a free choice given the obvious implications of a loss of employment, it was a choice they had.
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“The risk to life was far from remote. The respondent had seen the actual affect of Covid within its care homes.”
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