Even though the dark, dark days of the pandemic may feel like a long way off for many, the grindingly slow process of justice means that many cases are only just reaching the Employment Appeal Tribunal stage of the legal process. And, decisions at appeal are important as they carry great weight for subsequent Tribunal rulings.
In the recent case of Masiero & others v Barchester Healthcare Ltd, the Employment Appeal Tribunal (EAT) has upheld a Tribunal’s decision that the dismissal of care home workers for refusing to comply with a mandatory COVID-19 vaccination policy was fair.
The Court emphasised the careful balance between individual rights and public health responsibilities, particularly within the high-risk environment of care homes during a pandemic.
Background of the Case
During the pandemic, Barchester Healthcare Ltd (BH Ltd) implemented a clear policy – all care home staff had to be vaccinated unless they had a medical exemption.
6 months later the Government mandated similar requirements for all care homes. Despite this, several employees who were subsequently dismissed for refusing the vaccine challenged their dismissals as unfair.
Tribunal’s Decision
They found that BH Ltd’s primary and very reasonable aim was to reduce the risk of death and serious illness among residents, staff, and visitors.
The refusal to comply with this policy was deemed a potentially fair reason for dismissal under the ‘some other substantial reason’ (SOSR) provision of Section 98(1)(b) of the Employment Rights Act 1996.
The Tribunal recognised the very real conflict between two articles of the European Convention on Human Rights (ECHR) – Protecting Life (Article 2) and the Right to a Private Life (Article 8).
However, it concluded that the vaccination policy was justified and proportionate given the severe risks posed by COVID-19. The Tribunal carefully considered all arguments presented by the Claimants, including the limited individual risk they posed and the high vaccination rate among staff (95%). Despite these factors, the Tribunal determined that the dismissals were substantively fair.
Appeal to the EAT
The Claimants argued that the Tribunal should have assessed the reasonableness of their refusal to be vaccinated. However, the EAT dismissed this argument, stating that while it can be helpful to consider whether an employee acted reasonably in refusing new terms, it is not always necessary. The primary focus remains on whether the employer acted reasonably.
The EAT also rejected the Claimants’ argument that the Tribunal failed to conduct a proper balancing exercise. They said that the Tribunal had thoroughly considered all relevant factors, and justified its decision based on a conscientious assessment of the case. The Tribunal recognised that even a small reduction in the risk to residents’ lives could justify the interference with the Claimants’ private lives, particularly in the uncertain context of a pandemic.
Key Takeaways for Employers
This case highlights several important points for employers, particularly those in high-risk sectors like healthcare:
- Public Health Justifications: Implementing policies aimed at protecting vulnerable individuals, such as a requirement to participate in vaccinations, can be justified and proportionate, even if they interfere with individual rights.
- Thorough Assessment: Employers should carefully assess and document the rationale for such policies, considering both public health needs and individual rights.
- Fair Process: Ensure that the implementation of policies and subsequent dismissals are conducted fairly, with a clear communication of the reasons behind such decisions.
- Human Rights Considerations: Employers must balance organisational policies with human rights obligations, demonstrating that any interference with rights is necessary and proportionate.
Ultimately if an employer can objectively justify its actions, proving they were proportionate and reasonable in the circumstances, then the resultant outcome could well overcome any potential conflict with human rights.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.
