Employment Appeal Tribunal Upholds Fair Dismissal of Care Home Workers Over COVID-19 Vaccine Refusal

The case, being heard over three years after the events complained of, centred on whether the dismissals violated the workers' rights or were justified in light of the pandemic.

During the coronavirus pandemic, Barchester Healthcare Ltd (BH Ltd) introduced a policy mandating COVID-19 vaccinations for all staff in its care homes, except those medically exempt. This policy was adopted six months before the UK government enforced a similar mandate for all care homes under the Health and Social Care Act 2008. Several employees who were dismissed for refusing vaccination brought unfair dismissal claims against BH Ltd.

The tribunal found that Barchester Healthcare Ltd's policy aimed to reduce the risk of death and serious illness among residents, staff, and visitors, which justified the dismissals under the "some other substantial reason" provision of the Employment Rights Act 1996.

The tribunal carefully considered the employees' arguments, including the limited risk they posed and the high vaccination rate among staff, alongside human rights considerations. It weighed the claimants’ human rights, acknowledging a conflict between the right to private life under Article 8 of the European Convention on Human Rights (ECHR) and the right to life under Article 2 ECHR. The Tribunal concluded that the dismissals were proportionate and justified to minimise health risks, aligning with the employer's duty to protect residents' lives.

The EAT dismissed the appeal, affirming that the tribunal had conducted a thorough and fair balancing exercise. The EAT clarified that while it may be useful to consider an employee’s reasonableness in such cases, it is ultimately the employer’s decision, based on sound business reasons, that determines fairness. Interestingly, this is yet another case where the tribunal appear reluctant to interfere with business decisions.

The tribunal's approach was supported by case law, and it reasonably determined that the employer's need to ensure a safe environment outweighed the claimants' rights under Article 8 of the European Convention on Human Rights. The EAT emphasised that the policy did not impose mandatory vaccination but rather set terms for continued employment, which did not infringe on the employees' right to consent to medical treatment.

The EAT's decision reinforces the principle that employers can enforce policies aimed at safeguarding public health, even if they interfere with individual rights, provided they are justified and proportionate. This ruling highlights the delicate balance between public health measures and personal freedoms, especially in the context of a global pandemic.

If you would like to discuss any of the above or have any questions in relation to your own employers policies and how to navigate compliance with these, our Employment team are here to help on 020 8290 0440 or email employment@thackraywilliams.com.