One of the most controversial policies, in the employment sphere at least, during the pandemic was the introduction of the regulatory-required vaccines for care homes and other medical staff.
Effective from 11 November 2021, the Covid-19 vaccine was added to the list of mandatory vaccines for anyone working in a CQC-registered, adult care-home in England.
‘Hundreds of unfair dismissal cases’
The policy was scrapped in March but during that time a significant number of workers were dismissed as they were unwilling to be vaccinated, could not prove medical exemption, and their employers argued they had no other option than dismissal.
Hundreds of unfair dismissal cases issued as a result are still pending across the country with many naming the CQC and Department of Health and Social Care as co-respondents.
The basic underlying position of claimants is that the regulation itself was unlawful and therefore the resulting dismissals must also have been unlawful.
Here, Chris Dobbs looks at the latest of these unfair dismissal cases – where a care home won one of these ‘No Jab, No Job’ cases.
Barchester Healthcare Limited
Barchester, in effect, pre-empted the regulations and introduced the policy themselves before the announcement of the changes to the legislation.
The claims brought were therefore unfair dismissal along with two of the claimants also seeking damages for direct and indirect discrimination as well as harassment on the basis of religion or belief.
Fairness of Dismissals
In all cases, the Respondent relied on section 98(1)(b) of the Employment Rights Act 1996- that there was “some other substantial reason” which justified the dismissals and that it acted reasonably in reaching the decision to dismiss.
The Tribunal found that the justification for Barchester’s policy was to reduce the risk of the spread of Covid through its homes, thereby reducing the risk of illness or death of its residents.
This, the Judge found, was both genuine and substantial and which could justify dismissal.
What were the claims and what did the tribunal rule?
While human rights issues were raised during this case, the question ultimately came down to the process and procedure followed by the employer in deciding to dismiss.
The Claimants sought to rely on the limited information given about the risks of the vaccine once the policy was introduced as well as the speed of the implementation and subsequent dismissals.
On balance, however, the Tribunal found that the implementation was justified by the Respondent’s underlying concern about the spread of the disease.
Redeployment was not seriously raised by the Claimants internally or at any subsequent stage although I would suggest this would remain a relevant consideration in the future in the hopefully very unlikely situation of a similar event.
On balance, therefore, the Respondent met its threshold of dismissal being “within the band of reasonable responses”.
Religious Discrimination claims
Two of the Claimants also sought to rely on claims for discrimination on the basis of religion or belief. One as a Christian (Mrs Motiejuniene) and the other as a Muslim (Mrs Hussain).
In Mrs Motiejuniene’s case, she relied on a belief that God had created the human body with its immune system as necessary to survive plus the broader philosophical belief that “taking a vaccine might destroy [the] balance/aura” of harmony and body.
Mrs Hussain specifically objected to the use of abortive foetal medical cells in vaccine development especially where such were genetically modified. She also believed, in essence, in “my body, my choice” or the belief that medical intervention should require consent.
How were these claims responded to?
The Respondent did not object, per se, to these arguments being capable of meeting the definition under section 10 Equality Act 2010.
Indeed, the Tribunal noted that the primary argument was that their refusal to be vaccinated was not motivated by the belief, rather than the beliefs not existing or being capable of protection.
What did the tribunal find?
In Mrs Hussain’s case, the Tribunal found that she had taken medication before which was also produced using foetal cells.
It was noted in evidence that, while other factors can be relevant to distinguish it, she had also taken the morning after pill previously. She did refuse to have the vaccine, however, due to her belief in “my body, my choice”.
Mrs Motiejuniene, it was accepted, did refuse the vaccine because she believed she did not need it and that such belief was linked to her belief that God would protect her from the virus.
Why did these claims fail?
All their claims failed however. Here, in summary, I’ve listed all of the claims and why they failed:
Direct discrimination claims
The direct discrimination claims would have required them to be dismissed because of the religious or philosophical belief which was clearly not the case.
The indirect discrimination claims
They rely on broader evidence that people with their particular belief were put at a disadvantage. The Tribunal took judicial note of the not inconsiderable number of people in the UK who had set aside similar beliefs and had the vaccine.
They also noted the various religious organisations and governing councils who had deemed the vaccines safe, legitimate and lawful under religious rules.
Even then, an indirect discrimination claim would be defendable on the basis of proportionality and for the same reasons set out in the unfair dismissal justification, the Respondent could have defended their actions.
The harassment claim
In respect of the harassment claim, there was no unwanted conduct related to religion. Mrs Motiejuniene had been asked during a consultation meeting to clarify her belief and as this was her reason for the objection it was reasonable.
An Employment Solicitor’s View
Chris Dobbs on the success, or lack thereof, of these claims: “The discrimination claims, as we have suggested in previous articles on this topic, were unlikely to succeed in any case.
The strongest claims are for indirect discrimination but the proportionality test often balances such claims in the employer’s favour, especially where they do reasonably consider all possible alternatives to dismissal.
However, that is not to say that in every situation an indirect claim would fail. The Tribunal did note in its judgement that some of the claimants’ job roles, such as a laundry assistant, could mean that a less drastic approach could have been considered.
The Respondent was probably luckier on the unfair dismissal claim. As the Government was already consulting on the mandatory vaccination, although it had not become law at the time, the Respondent was just pre-empting something that would have happened in any case. The judgement also relied heavily on the timing and the sense of urgency felt by the Respondent and similar organisations at the time.”
Takeaways for employers
Chris continues: “An employer is much less likely now to get away with the urgency argument – even in the event of comparable circumstances.
It is an important reminder of the factors which can play into an unfair dismissal decision and the fact that dismissals do need to be both factually and procedurally fair.”
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