Three care workers who refused to have the Covid-19 vaccine have been given permission to continue their claims for unfair dismissal.
Ms Dimitrova, Ms Chadwick and Ms Hussain were employed by UK care home provider Barchester Healthcare, which implemented a ‘no jab, no job’ policy within the organisation in 2021. The policy was in effect prior to the government implementing law to achieve the same aim in care homes.
The three workers refused the vaccine, citing religion, allergy fears, freedom of choice and testing doubts, and all were subsequently dismissed as a result.
They brought claims for unfair dismissal, arguing that Barchester’s policy infringed their rights under Article 5, the right to liberty and security of the person, and Article 8, the right to respect for their private and family life.
The Employment Tribunal in December 2022 ruled that Barchester did have the right to dismiss employees who refused the vaccination, finding the organisation’s need to protect residents outweighed workers’ rights under the European Convention on Human Rights.
The workers appealed the decision.
The Employment Appeals Tribunal (EAT) has now ruled that the claimants can continue their claim for unfair dismissal. The EAT Judge held that the workers had raised an arguable point of law in their case that a lower tribunal had failed to correctly balance their human rights with the aim of the care home to protect the safety of residents.
A Barchester spokesperson said: “In early 2021 we took the decision that staff working in a Barchester care home or hospital must have the Covid-19 vaccine, if they wished to continue working for Barchester, in order to protect the vulnerable residents and patients in our care and also themselves.
“This isn’t a decision that we took lightly, and sought feedback from staff and residents and relatives, as well as medical specialists, in order to make the decision. Our duty is to ensure that the safety and wellbeing of our residents is always at the forefront of our decision making.
“It was our policy at the time for any new employees to have had one vaccine when they joined and commit to having their second by the end of their probation period, unless they were medically exempt.
“We welcomed the ruling of the employment tribunal who found our vaccine policy to be reasonable, and accepted the introduction of our policy to reduce the risk of spread of Covid infection in our homes and hospitals. However, we do respect personal choice and the decision of those who didn’t want the vaccine and we wish those staff well.”
The appeal is expected to go before the EAT early in 2024 for full consideration.
Employer takeaways
Given the mandatory vaccination policies ended in 2021, it would not typically be allowable for a worker to bring a new unfair dismissal claim dealing to the due to 3-mohth time limit for tribunal claims. However, this case remains of general interest in relation to how the EAT will determine the balance between an organisation’s health and safety obligations with the rights of its workers under the European Convention on Human Rights.
Last updated: 8 October 2023
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Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
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