Care Home employees fairly dismissed over Covid policy

Were Claimants employed in care homes fairly dismissed after refusing to be vaccinated against Covid, in breach of the employer’s policy?

Yes, held the EAT in Masiero & others v Barchester Healthcare PLC.

In early 2021, the Respondent introduced a policy requiring staff to be vaccinated against Covid, before it became a legal requirement. The Claimants declined to be vaccinated and were dismissed for a substantial reason (SOSR). The appeals were based on Human Rights considerations and the tribunal’s approach to the SOSR dismissals.

On the Human Rights challenges, the EAT noted that the Respondent’s policy did not involve mandatory vaccination (i.e. forced medical treatment), and the Respondent was pursuing aims including protecting residents’ right to life under Article 2 of the ECHR. The tribunal was entitled to find justified the interference with the Claimants’ Article 8 rights – the right to a private and family life. The vaccine policy had not deprived the Claimants of ‘free and informed consent’ to medical treatment, they had not had that treatment.

The tribunal had not been wrong to consider case law on Human Rights/objections to vaccination, it was entitled to have regard to that case law. In this case, with a private sector employer, the tribunal had noted the ‘clash of rights’ between the right to life and the qualified rights under Article 8, and it was entitled to find that even a small reduction in the risk to life from the policy could outweigh the Claimants’ Article 8 rights, and the dismissals did not breach Article 8.

In relation to the SOSR dismissals, the tribunal was entitled to find that the employer acted reasonably in dismissing the Claimants. The tribunal has to consider all factors relevant to the particular case, rather than follow a particular ‘checklist’ of factors as the Claimants contended. Here, the tribunal had not erred by not considering a particular range of factors in deciding that the dismissals were fair.

Thanks to Daniel Barnett for preparing this summary.