The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision to reject the unfair dismissal claims of care home workers who were dismissed for refusing to comply with their employer's policy requiring them to be vaccinated against COVID-19 during the pandemic in Masiero and ors v Barchester Healthcare Ltd.
In early 2021, Barchester Healthcare Ltd (BH Ltd) introduced a policy requiring all staff in its care home to be vaccinated against COVID-19 unless they were medically exempt. This policy was introduced before it became a legal requirement in November 2021 (this legal requirement was revoked in March 2022). The claimants who were dismissed for refusing to be vaccinated brought unfair dismissal claims against BH Ltd before an employment tribunal.
The tribunal dismissed their claims, finding that the reason for BH Ltd's vaccine policy was to reduce the risk of death and serious illness among its residents, but also among staff and visitors. Dismissal for a refusal to comply with the policy was for "some other substantial reason" (SOSR). Although there was acknowledged to be a clash between BH Ltd's aim of protecting life, and the claimants' rights to enjoy a private life (under Article 8 of the European Convention on Human Rights (ECHR)) the tribunal found that the interference with the claimants' rights was justified by the legitimate aim of minimising the risk of death and serious illness, and dismissal was a proportionate measure to achieve that aim. The claimants appealed.
The EAT noted that, on the basis of the claimant's arguments that their refusal to comply with the vaccination requirement was reasonable, even where the employee acts reasonably in refusing to accept new terms and conditions, there will be cases where the employer will still act reasonably in imposing the terms and dismissing the employee on the basis of a "sound business reason". It also considered whether the tribunal had failed to carry out a balancing exercise by reference to the human rights arguments and by reference to wider considerations of fairness. It found that the tribunal had taken into account the number of employees who had accepted the policy and had explained why it had rejected the claimants' arguments that, as 95% of the workforce had been vaccinated, BH Ltd could reasonably have allowed those who objected to remain in their jobs. The tribunal had found that BH Ltd reasonably considered that each unvaccinated person working in the care homes created an increase in risk and that it would have been unfair, and detrimental to good staff relations, to have exempted some staff from the vaccination requirement without a medical exemption.
The EAT also found that the tribunal had been right to conclude that if it allowed the claimants to work unvaccinated, BH Ltd would have infringed the residents' right to life under Article 2 of the ECHR. It was open to the tribunal to have found that even a small reduction in the risk to life of residents was capable of outweighing the claimants' Article 8 rights. It also found that it was not the case that BH Ltd's vaccination policy deprived the claimants of giving their free and informed consent to the vaccination, thereby infringing their right to privacy, as it did not impose a mandatory requirement to submit to medical treatment.
Take note: Although Masiero dealt with a dispute about mandatory vaccination (something which is unlikely to be a regular feature of workplaces in future), it demonstrates the approach that a tribunal will take when undertaking a balancing exercise where it is argued that a dismissal has breached an employee's human rights under the ECHR.
