This is an employment tribunal appeal case where a claim was brought by four healthcare workers who were dismissed for refusing to consent to the COVID-19 vaccination which was a mandatory requirement under the employers' internal policy.
In Masiero and Others v Barchester Healthcare Ltd [2024] EAT 112, the EAT agreed that a healthcare provider's mandatory coronavirus (COVID-19) vaccine policy did not infringe a group of care home workers' human rights, ruling that they were fairly dismissed because the company had a right to protect its residents.
Material Facts:
The claimants were employed by the respondent healthcare provider until they were dismissed in May/June 2021 for refusing to be vaccinated against Covid-19 in accordance with the respondent's policy.
The respondent adopted the vaccine policy approximately 6 months in advance of the government mandating a similar policy for all care homes.
The respondent's residents were particularly vulnerable to COVID-19 due to their age and/or medical conditions.
The respondent had experienced increased death rates among residents during the pandemic, with COVID-19 recorded as a cause of death for 1,250 residents in 2020.
The respondent considered the vaccine to be approved, safe, and a means to reduce the risk of COVID-19 transmission in its care homes.
The Law
Submissions of the parties
The claimants argued that:
The Employment Tribunal erred in law by failing to apply the two-part test for unfair dismissal for some other substantial reason (SOSR) from Catamaran Cruisers Ltd v Williams.
The Employment Tribunal failed to carry out the balancing exercise endorsed in Scott & Co v Andrew Richardson when addressing fairness under s. 98(4) of the Employment Rights Act 1996.
The Employment Tribunal erred in law by failing to correctly convey the meaning of Article 2 (right to life) of the European Convention on Human Rights.
The Employment Tribunal erred in law by failing to properly consider the issue of free and informed consent regarding the vaccine policy.
The Employment Tribunal erred in law by following the decisions in R (Peters) v Secretary of State for Health and Social Care and Vavricka and ors v The Czech Republic.
The Employment Tribunal made a perverse finding that there was no procedural irregularity in the decision of dismissal, despite its previous findings of fact.
The Ruling:
The Employment Tribunal correctly applied the law on unfair dismissal under s. 98 of the Employment Rights Act 1996. Catamaran Cruisers Ltd v Williams does not establish a separate legal requirement for the Tribunal to consider whether the employee acted reasonably in refusing to accept new terms and conditions.
The Employment Tribunal carried out a proper balancing exercise in considering whether the dismissals were fair in all the circumstances under s. 98(4), as endorsed in Scott & Co v Andrew Richardson.
The Employment Tribunal did not err in its consideration of Article 2 (right to life) of the European Convention on Human Rights. Article 2 was relevant as one of the reasons why interference with the claimants' Article 8 rights was justified, in pursuit of the respondent's aim of protecting the lives of care home residents.
The Employment Tribunal correctly concluded that the respondent's vaccine policy did not deprive the claimants of their right to free and informed consent, as they were not forced to receive the vaccination and retained the autonomy to refuse it.
The Employment Tribunal did not err in law by considering and following the decisions in R (Peters) v Secretary of State for Health and Social Care and Vavricka and ors v The Czech Republic as persuasive authorities.
The Employment Tribunal's conclusion that Mrs. Hussain's dismissal was procedurally fair, despite some shortcomings in the process, was not perverse. The Tribunal adequately explained its reasoning, taking into account the fairness of the process as a whole.
The appeal was dismissed. The Employment Tribunal did not err in law in concluding that the claimants' dismissals for refusing to be vaccinated against COVID-19 were fair.
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