An Employment Appeals Tribunal has given a group of care home workers the green light to continue their claim that they were unfairly sacked for refusing a Covid-19 vaccine
At the EAT, Judge Sarah Crowther decided that the workers had raised an arguable point of law in their case that a lower tribunal had failed to correctly balance their human rights with the aim of the care home to protect the safety of residents.
The care workers were employed by Barchester Healthcare, the second largest care home provider in the UK, which 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 were in place to reduce the risk of transmission, these had only been partially effective.
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Barchester won the December 2022 case.
The EAT ruling will allow the women, Ms Dimitrova, Ms Chadwick and Ms Hussain, who were fired by Barchester in 2021 after refusing the vaccine, to continue their case. Another worker, Ms Masiero was granted permission in June to proceed.
The women had refused to take the vaccine because of religious beliefs, a fear of allergic reaction, the principle of having a choice and doubts over the vaccine’s testing.
In 2022 the employment tribunal ruled the aim of the care home to protect resident safety outweighed the rights of workers under the European Convention on Human Rights.
The claimants argued that the policy infringed their rights under Article 5, which is the right to liberty and security of the person, and Article 8 – the right to respect for their private and family life. The tribunal decided, however, that “any interference with human rights in the circumstances of this case was proportionate.” It also ruled that the care home’s aim was supportive of Article 2 of the convention – the right to life.
Legal test
Dimitrova, Chadwick and Hussain argue in their appeal that the lower tribunal failed to carry out the legal test of considering whether they were acting reasonably in refusing the vaccine, and that they did not intend to intentionally deprive anyone of life – so Article 2 was not applicable.
The appeal is expected to go before the EAT early in 2024.
Kate Palmer, HR advice and consultancy director at Peninsula said there was no need for employers to “panic” for fear of fresh tribunal hearings in light of the ruling. She said the rules on time limits for making claims would bar any new claims from being made; dismissals will have taken place in 2021 and, normally, employees have three months from dismissal to make a claim which means time will have run out now.
She said of the EAT hearings to come in the case: “The aims of the employer will be considered against the effect it had on the employees. The original tribunal could see that the care home’s aim for the safety of residents was paramount.
“The EAT will need to look at whether there were any other alternative methods for achieving this safety without dismissing the care home staff.”
Palmer added: “It’s important not to confuse this situation with dismissals which occurred because of the legal requirement in England for care home workers to have the vaccine.
“This case is about an employer’s own decision to implement a ‘no vaccine, no job’ policy, which came about before the government’s law to achieve the same thing in care homes which, of course, has since been removed.”
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