We are still seeing the Covid-19 cases relating to employee refusal to have the vaccines trickling through the courts. This serves as a reminder as to how long litigation can take.
The case of Masiero & others v Barchester Healthcare PLC is an Employment Appeal Tribunal (EAT) case that considered whether claimants employed in care homes were fairly dismissed after refusing to be vaccinated against Covid. The dismissals were in breach of the employer’s policy.
By way of background, the employer, in early 2021, introduced a policy requiring all staff to vaccinated against Covid. The employees in this case declined to be vaccinated and were dismissed for something other substantial reason (SOSR). The EAT appeal focused on human rights considerations and the approach of the Employment Tribunal (ET) to SOSR dismissals.
In respect of the human rights challenges the EAT noted that the employer’s policy did not provide for mandatory vaccination but by virtue of requiring its staff to be vaccinated, it was pursuing aims to protect the rights of its residents under Article 2 of the European Convention on Human Rights (ECHR). Therefore, the tribunal was entitled to find that the interference with the claimants’ Article 8 rights (right to a private and family life) was justified. The vaccination policy had not deprived the employees of free and informed consent to medical treatment as they had not had the treatment (the vaccine).
In addition, the EAT held that the ET had not been wrong to consider case law on human rights/vaccine objection. It was entitled to regard this case law. There had been an understanding of the clash between the right to life and qualified rights under Article 8. The ET was entitled to find that even a small reduction in the risk to life from the application of the vaccination policy could outweigh any Article 8 right held by the claimants. Therefore, the dismissals for SOSR did not breach Article 8.
The tribunal was found on appeal to be correct in finding that the employer acted reasonably in dismissing the claimants. The ET was duty bound to consider all factors relevant to a particular case rather than simply a checklist of factors. The ET had not made a mistake by not considering certain factors when reaching the conclusion that the dismissals were fair.
We seldom see SOSR dismissal judgments, the application of SOSR as a basis for dismissal is rare. It is ultimately a catch all provision where one of the other fair reasons for dismissal in the Employment Rights Act 1996 does not apply. If used wisely, it can be effective but, comes with risk (as does any dismissal). What is interesting in this case is the interplay with human rights and the determination here (correct in my view) that Article 2 rights justified the interference with Article 8 rights. This was a wider societal argument rather than being limited to the rights of the individual.
This blog was written by Elizabeth McGlone, Partner at didlaw.
