Oscar Davies acted for three of the care home workers in this case.
In Dimitrova et Ors v Barchester Healthcare Ltd ET 1803315/2021, 5 care home workers brought claims against Barchester Healthcare Ltd, the second largest provider of care home services in the UK. These 5 Claimants were heard in the first tranche of several other claims. They all brought claims of unfair dismissal and two brought claims of direct/indirect religion/belief discrimination. Another Claimant brought a belief related harassment claim.
Background
The Claimants were all employed by Barchester, an organisation with around 12,600 residents and more than 17,000 employees. The relevant period leading up to dismissal was January-June 2021, notably before the government implemented a statutory requirement for care home workers to be vaccinated on 11 November 2021 (subsequently repealed on 15 March 2022). Barchester implemented a policy requiring vaccination of its care home staff for deployment before it was a statutory requirement.
The Respondent first published an announcement by email on 15 December 2020 to all staff that the first Covid vaccine had been given approval by the Medicines and Healthcare products Regulatory Agency (“MHRA”).
During the trial, it transpired that in a meeting in December 2020, Pete Calveley, Barchester’s CEO, had used the term “bollocks” with reference to anyone saying the vaccine was experimental. This was confirmed by Mr O’Reilly in evidence, General Counsel and Director of Quality, Risk and Compliance at Barchester.
On 5 January 2021, shortly before the third national lockdown in England due to rising cases of Covid infection, the Respondent emailed staff about the new Alpha variant posing a huge risk to residents, with initial data suggesting that it was 70% more transmissible than previous variants.
On 18 January 2021 the Respondent introduced and published a vaccine policy which provided that any new staff would need to be vaccinated to be employed by the Respondent. The Respondent would only promote people or pay discretionary bonuses to existing staff if vaccinated against Covid. The Respondent reserved the right, as a second stage, to make vaccination a condition for current staff of being employed by the Respondent.
It was recognised that a requirement to be vaccinated would only be reasonable and proportionate if appropriate exemptions were permitted, with the Respondent referring to safety (where the concern was medically based, for example, an allergy to the contents of the vaccine), accessibility (which was not a major concern given the rollout programme of the vaccine), pregnancy (where the vaccine was not necessarily recommended) and other exemptions where a reasonable employer might include circumstances which were evidenced by a GP letter.
The Respondent also provided information regarding its proposals to the Unison and GMB unions and the Royal College of Nursing. The unions described themselves as strong supporters of the vaccination programme and that a positive message had been given to their members. However, the Respondent’s policy was said to place it at odds with the vast majority of employers in the sector and good practice being urged by government. A change to terms and conditions and a requirement of the vaccine for future employment was described as a means to pressurise people which was described as, again, “not acceptable and is counter-productive”. The unions described their primary concern as maximising the number of care workers vaccinated in the shortest possible time, but they considered the Respondent’s approach to be ill thought out. They provided further joint feedback on 19 February having been provided with a copy of the risk assessment on 16 February. This feedback was along similar lines, describing the linkage between the vaccine and continued employment/employment benefits to be “punitive” and the “wrong approach”. It was suggested the policy be subject to a thorough Equality Impact Assessment.
The Respondent, despite the position taken by the unions, determined to introduce the second stage of the vaccine policy on 24 February 2021. In its communication to staff of that day it was recognised that employees had the right to make a personal choice and that the Respondent respected a decision not to have the vaccine. However, that was, in the Respondent’s view, on balance, not compatible with the totality of its obligations to residents, staff and visitors. Staff were told that if they remained unwilling to get the vaccine voluntarily and were not exempt, they would be subject to investigation under the Respondent’s disciplinary procedures and potential dismissal.
The Respondent was unwilling to indemnify people for long-term vaccine related symptoms in circumstances, Mr O’Reilly said, where it was clear that it was not insisting that people had the vaccine. It was their individual choice. He agreed that staff could have been more confident about the lack of long-term side effects from the vaccine if it had been around a longer time. He, however, made the point that it had been administered to many hundreds of thousands, if not millions, of people with ample time to see whether there were any short or medium term effects.
The effect of one part of the Respondent’s policy was to deprive employees of a potential bonus. None of the Respondent’s bonuses are contractual. A bonus was nevertheless paid to care home staff in firstly July/August 2020 and next in December 2020/January 2021 relating to performance over the preceding 3 months. No bonus was, however, paid in March 2021 to employees who had not been vaccinated. The Respondent’s rationale was that those employees had had the ability to be vaccinated and accepting the vaccine was their professional responsibility.
The Claimants
Mrs Motiejuniene worked as a care assistant and considered part of the reason she did not take the vaccine was because she could protect herself naturally and her immune system protected her against viruses and other threats. Part of Mrs Motiejuniene’s case was in harassment, and that Ms Crowley’s question “You believe God will protect you?” was derogatory and constituted harassment. Mrs Motiejuniene responded that: “God created us perfectly with a good immune system.”
Mrs Hussain was a laundry assistant. Mrs Hussain wrote to Mr Calveley on 15 March 2021. She referred to the vaccine policy putting her under a lot of unnecessary stress. She said that she would not be able to accept the vaccine. One of the reasons was the fact that she suffered an allergic reaction in the past, describing an anaphylactic reaction to medicine where her tongue and throat swelled up and she had to be given an adrenaline shot to counteract the reaction. She said that the occurrence of this incident was viewed as a medical exemption in her medical history. She also did suggest that, as a laundry assistant, she did not come into direct contact with residents and was, therefore, not placing any persons at risk by not being vaccinated. She did, however, she said, have a duty to protect her own health and well-being and had discovered that the vaccine manufacturers were absolved of liability, as well as medical professionals administering the vaccine. She referred to having previously informed Rachel Smith of her medicine allergies. She said that there were no statutory provisions which could force individuals to become vaccinated and that any coercion would breach human rights and amount to an unlawful injury. She claimed that she was protected under the Equality Act and did not, when signing her contract of employment, consent to any vaccine.
Mrs Hussain said her discrimination claim was based on her being treated because of a philosophical belief in bodily autonomy (“my body, my choice”) or say that she was refusing the vaccine because of her religious beliefs, including that the vaccines use abortive foetal cells genetically modified by science. Mrs Hussain expressed the view that the vaccine was experimental until 2023 and that only after that date would she take it. She said that she was afraid for her health and asked if anyone could guarantee that she would be safe.
Miss Chadwick had worked as a care assistant at Castle Park, Hull from 14 August 2014. As such, she was required to carry out all the usual aspects of close personal care associated with that role. Miss Chadwick confirmed that she was aware of the policy and that she did not have a medical exemption. She said that she understood that the Respondent wished to implement the policy to protect residents, however she was concerned that the vaccine was experimental and that its long-term effects were not known. Miss Chadwick reiterated in evidence to the tribunal that the reason for her refusal of the vaccines was that they were still in experimental stages until 2023 and there was no data to support their safety or long-term effect. She had an antibody test which came back positive, such that she believed she had antibodies which would fight off Covid 19 as her body had previously. She said that she was concerned that if she wanted to have another child in the future, the vaccine would affect her fertility given its experimental nature.
Mrs Dimitrova is a qualified nurse and had worked at the Castle Park care home since 2004, firstly as a care assistant, then as a qualified nurse and since May 2019 as deputy manager. Mrs Dimitrova confirmed that she was refusing to have the vaccine because she believed it was still at a trial stage. Mrs Dimitrova’s position remained that she considered the vaccines to be experimental until they had completed phase 3 trials around early 2023. She considered that anyone who took them, when the Respondent introduced its policy, was participating in a clinical trial. There was no data for medium and long-term safety. She believed that the protective measures in place in the home were good enough to keep people safe and a good alternative to the vaccine.
Miss Masiero worked as a care assistant from 1 April 2009 team in the Leonard Lodge care home in Brentwood. Miss Masiero explained at the meeting that she was not having the vaccine on the basis that her body and immune system were able to fight off any virus and this was her decision. She explained that she used to work during the flu pandemic, wore PPE and was still negative. Her reasons for refusal were personal to her. She said that long-term data was not available and she was unable to make a fully informed decision. She raised potential risks to fertility. After considering what had been said, Ms Ilie determined that Miss Masiero’s employment should be terminated for some other substantial reason effective after a period of notice on 15 July 2021. She explained in an outcome letter that the policy had been introduced to enhance and secure the safety and well-being of residents, employees and visitors. She said that she had explained that the vaccine had been approved for use in the UK having met strict standards of safety quality and effectiveness set out by the MHRA. Miss Masiero was given a right of appeal, but chose not to exercise it.
Miss Masiero told the tribunal that she felt she had been subject to coercion, with the Respondent presenting a one-sided story pretending that everything was settled when it was not. She said that there were many doctors and scientists who had very different views to what was being promoted by the mainstream media, but they were being silenced. She said that, as a rational and empowered human being, she felt she was being treated like a second-class citizen. She told the tribunal that she would never change her mind about the Covid vaccine. She agreed, finally, that she had never produced a medical exemption.
Decision
Unfair dismissal
The approach to take to arguments on human rights in relation to unfair dismissal was given structure by the Court of Appeal in X v Y [2004] ICR 1634 as follows:
(a) “Do the circumstances of the dismissal fall within the ambit of one or more of the Articles of the ECHR? If they do not, the Convention is not engaged and need not be considered
(b) Does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer
(c) If it does, is the interference with the employee’s Convention right by dismissal justified?
(d) if it is not, was there a permissible reason for the dismissal under the ERA that does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it
(e) if there was, is the dismissal fair, tested by the provisions of S.98 ERA, reading and giving effect to them under S.3 HRA so as to be compatible with the Convention right?”
Nevertheless, in Turner v East Midlands Trains Ltd 2013 ICR 525 the Court of Appeal accepted that the band of reasonable responses test provided a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss under Human Rights legislation.
The tribunal accepted that the reason for the Respondent’s introduction of its vaccine policy was to reduce the risk of spread of Covid infection in its homes and, therefore, death and serious illness amongst primarily its residents, but also its staff and any visitor (para 241).
There were then, in the claims of unfair dismissal, two key questions to address. First, whether dismissal was substantively fair, dismissal falling within a range of reasonable responses where a reasonable employer in the Respondent’s circumstances might have terminated employment. Secondly, the tribunal must determine whether there was a fair implementation of the policy in the case of each individual Claimant including the procedure adopted prior to dismissal.
The Respondent’s justification of the Claimants’ dismissal was “some other substantial reason”. Whilst “some other substantial reason” is a wide-ranging potential “catch all” category for a potentially fair dismissal, the mere assertion of such a reason is insufficient. Classically cases falling within this category of a potentially fair reason involve changes to contracts of employment which are driven by a need to save money or increase efficiency by organisational change. The Tribunal held that the reason the Respondent dismissed these Claimants was, in its genuine view, for a more substantial reason, where it believed its policy of (subject to medical exemption) only employing vaccinated care home staff would save lives. The Tribunal emphasised:
“It is not for this tribunal to determine the question of reasonableness on its own view as to the requirement to implement a vaccine policy of this nature, just as it cannot override a commercial decision simply on the basis that it believes that an alternative approach might have been open to an employer. The tribunal has been clear from the outset that it is not its role to assess the dangers of Covid, nor the effectiveness or safety of any Covid vaccine.” (para 243).
In this case, the fairness of the policy which led to the Claimants’ dismissals had to be evaluated against the interference it involved with the Claimants’ human rights. Whilst the Respondent, as a private organisation, was not under direct obligations imposed by the Human Rights Act 1998, the tribunal (as a public authority) is under a duty to read the right not to be unfairly dismissed so that its conclusion is not incompatible with the protection afforded to human rights.
This case involved a clash of Article 2, the right to life (of the residents), and Article 8, the Claimants’ privacy rights. It was argued on behalf of the Claimants that Article 2 was not necessarily infringed. There were a number of stages involved for the Claimants to put any of the care home residents’ lives at risk, including the Claimants’ infection with Covid, it not being picked up in PCR and lateral flow tests, the Claimants being asymptomatic (on the assumption that they would not have been at work if they exhibited symptoms), their transmitting the infection to a resident (despite all precautions having been taken) and a resident being sufficiently vulnerable, so as to become seriously ill or die.
In R (on the application of Peters) v Secretary of State for Health and Social Care [2021 EWHC 3182 application for permission for a judicial review into the Regulations subsequently introduced by the Government to prevent the unvaccinated from working in care homes, Mrs Justice Whipple noted that the purpose of that legislation was “to reduce the spread of COVID-19 in care homes, in order to protect care home residents who are vulnerable to COVID-19”. With reference to the Regulations infringing Article 8, after recording that the whole point of the measure was to protect the lives of elderly care home residents, the measure itself was found to be intended to protect the Article 2 rights of those who are resident in care homes. That was described as “a very weighty justification for any interference with Article 8 which might be established.” The tribunal in this case held that the same considerations must apply to all the qualified rights relied upon by the Claimants in this case.
The Claimants relied upon the Article 8 right to respect for private and family life. Whilst the Respondent denied that Article 8 applied, the tribunal accepted that the physical integrity of a person is covered by the concept of “private life” protected by Article 8, which would certainly cover compulsory medical intervention. On balance, the breadth of Article 8 is such that it is engaged in circumstances where an individual must consent to a vaccination in order to maintain their current income and way of life for themselves and their dependents. In the Vavricka & Ors v The Czech Republic 47621/13 case, not being admitted to pre-school because of a lack of vaccination involved an interference with Article 8 rights. Whilst that exclusion might have affected a child’s development, the exclusion in this case might have affected the development of a whole family in terms of a removal of income, where it is an incomplete answer to say that the Claimants could simply have obtained employment elsewhere – that is, rather, potentially a factor to be weighed in the balance when seeking to justify an interference.
Mrs Hussain and Mrs Motiejuniene relied upon Article 9 ensuring the right to freedom of religion and belief. Again, this right is broadly framed so as to cover the manifestations of a religion or belief. This was weighed against the Respondent’s aim of protecting the right to life of its residents.
Ultimately, the weight given to the Respondent’s justification was enhanced by the position of care homes in the circumstances of a pandemic with an uncertain future impact and where the Respondent’s and the Claimants’ primary responsibility was to ensure the welfare of care home residents.
Applying the structured approach advocated in X v Y, the circumstances of the dismissals here did engage Article 8 – the personal autonomy a person should enjoy in making decisions concerning their health (see Pretty v United Kingdom (92002) 35 EHRR1 as applied by the Employment Tribunal in Allette v Scarsdale Grange Nursing Home Ltd [2022] 1 WLUK).
The tribunal then, as a public authority, had to ensure that the rights of individuals are respected – in terms of a margin of appreciation, the issue of bodily autonomy and individual health go to a person’s identity, physical integrity and an integral aspect of private life. There is also a balance of competing rights between private individuals, rather than the state and a private individual.
In terms of justification, the tribunal held that interference with article 8 and/or other convention rights was in accordance with the law. Vaccination was not at this point in time mandated by law, but vaccination was not physically forced upon any of the Claimants. Whilst they would not have judged it as a free choice given the obvious implications of a loss of employment, it was a choice they had. The interferences were then judged as being necessary in a democratic society, given the need to take steps to reduce the risk of death and serious illness in a care home environment, prone to be an environment where the coronavirus might readily spread and one populated by vulnerable residents. The tribunal also determined that the Respondent was acting proportionately when weighed against the imperative of creating as safe an environment as possible and, not least, in circumstances where staff did not have to be vaccinated as a condition of employment if medically exempt. The tribunal concluded that any interference with human rights in the circumstances of this case was proportionate.
The tribunal accepted the argument, put on behalf of the Claimants, that the policy was new and unanticipated and certainly not allowed for in any existing contract of employment. Nevertheless, it held that fair dismissals for some other substantial reason often do involve contractual changes, with the necessary assessment by a tribunal of their substantive reasonableness and whether a fair procedure was adopted in introducing them. Certainly, dealing with the effects of the coronavirus or any other virus of that nature, was not something which one would reasonably have expected to have been anticipated by an employer even in the healthcare sector.
The tribunal held that the dismissal of all of the Claimants was substantively fair. It fell within a band of reasonable responses and the above factors have all been considered in the tribunal’s deliberations as to justification in the context of an infringement of human rights.
In terms of procedural irregularity, in the case of Mrs Hussain the tribunal found that, despite her not being provided with key documents until one day before her formal hearing, despite her documents not being provided to the assessor, and despite not being provided a translator for her investigative hearing, her dismissal was deemed procedurally fair.
The tribunal held that for all the Claimants the procedure carried out by the Respondent was fair.
Belief discrimination claims
Mrs Hussain’s belief in ‘my body, my choice’ was held to constitute a protected philosophical belief. However, the tribunal did not find that she had been treated differently because of her belief, as she only mentioned it first in her grounds of appeal (so no direct discrimination).
In terms of indirect discrimination, the PCP was that all care home staff had to be vaccinated in the absence of a medical exemption, as a condition of receiving a bonus and of continued employment. The tribunal did not find there to be a group disadvantage given large amounts of Christians/Muslims have taken the vaccine.
If the group disadvantage had been shown, the question would then arise as to whether there is any individual disadvantage. In circumstances where Mrs Hussain did not, the tribunal finds, refuse the vaccine because of any religious belief, she does not surmount that hurdle. On the tribunal’s findings Mrs Motiejuniene might have shown individual disadvantage (as with Mrs Hussain in her belief in bodily autonomy), but an individual one only.
Even had Mrs Hussain and Mrs Motiejuniene been able to surmount all of the hurdles necessary in a complaint of indirect discrimination, the tribunal held that it was open to the Respondent to show that it has acted proportionately in pursuit of a legitimate aim as a defence to such a claim. The tribunal repeated the arguments in play in a justification of any infringement of a human right discussed with reference to the unfair dismissal complaints. The tribunal’s findings were that the Respondent had the legitimate aim of seeking to minimise the risk to life of its residents, staff and visitors. Given that this aim is supportive of the Article 2 right to life, it is again a justification of some weight for the vaccine policy. Again, this case does not involve the Respondent wishing to pursue a commercial objective but, squarely, a clash of rights.
The same considerations fed into arguments as to proportionality. The Claimants’ arguments, it was held, were strongest on the point of dismissal. The disadvantage caused to them was substantial, even if they might, with some effort, have secured employment elsewhere. Dismissal is the ultimate sanction open to an employer. The Respondent was nevertheless not acting disproportionately in pursuing a policy aimed at encouraging the maximum number of people to accept the MHRA approved vaccine as, it saw, their professional duty and a means of reducing the risk to life.
The tribunal held that the issue here was not the religion/belief, but the manifestation of the religion/belief which caused the individual to refuse to be vaccinated. Whilst it has been suggested that the treatment of the Claimants ought to be compared with those of different religions or beliefs who were vaccinated, the correct comparison would be with those who did not share their religions or belief but, like the Claimants refused the vaccine. It is not difficult for the tribunal to conclude that those individuals would also have been dismissed unless medically exempt. Certainly, no facts have been shown from which the tribunal could reasonably arrive at a conclusion to the contrary. There was no inherent discrimination in that there was nothing inherent in the religions of beliefs relied upon which led to them being unvaccinated. The evidence points the other way, for the majority of adherence certainly to the religions relied on and those who believe that medication should be administered only with consent. Here, there was a rule which was applied consistently to all care home staff regardless of their religion or belief.
In terms of Mrs Motiejuniene’s claim of harassment related to religion/belief, the tribunal noted what was said by Ms Crowley to Mrs Motiejuniene (“You believe God will protect you?”). However, the tribunal considered that the question was not asked sarcastically, but that Ms Crowley was ascertaining that she correctly understood what the Mrs Motiejuniene was saying. Mrs Motiejuniene believed that Ms Crowley was laughing “inside”, but she was there coming to an assumption which was not based on any expression that Ms Crowley actually made. In the context, the tribunal held that there was no unwanted conduct related to religion or belief. If Mrs Motiejuniene was upset or made to feel stupid by what Ms Crowley said to her, it was held that it was not reasonable for the comments to have had that effect, again given the full context of the conversation.
Conclusion
Each unfair dismissal and discrimination case against care homes must be decided on its own facts. The tribunal will look at the reasonableness of the policy and the procedural (ir)regularity of how the dismissal process was carried out. In addition, if there is a belief claim it will focus on whether and to what extent the Claimants were treated differently due to their beliefs.