Dismissal for ‘No jab, No job’ policy was fair

Several interesting employment related cases have arisen from the Covid-19 pandemic. The Employment Tribunal decision in Dimitrova & others v Barchester Healthcare Ltd is particularly insightful as it is one of the first Tribunal decisions to consider a ‘no jab, no job’ policy.

In this case, the ET had to decide whether the claimants were unfairly dismissed for failing to comply with Barchester’s policy that all care home staff be vaccinated against Covid-19 (subject to medical exemptions). The residents of Barchester’s care homes were typically of an advanced age, but also with one or more additional medical conditions. The claimants refused the vaccination for various reasons including religious and philosophical reasons.  Barchester introduced their policy, and the claimants were dismissed, prior to it becoming a legal requirement for healthcare workers in England to be vaccinated (a requirement which was subsequently scrapped). The claimants raised unfair dismissal and various discrimination claims.

The ET accepted that the reason Barchester introduced the 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 visitors. The claimant’s argued that the policy infringed Article 8 of the European Convention on Human Rights, namely the right to respect for private and family life. The ET found that whilst the dismissals did engage Article 8 – the personal autonomy a person should enjoy in making decisions concerning their health, any infringement of Article 8 had to be weighed against the care home resident’s right to life. The absolute nature of the resident’s right to life (which cannot be interfered with save in exceptional circumstances) meant that any infringement of the claimants’ rights was proportionate. The ET held that Barchester’s decision to terminate the claimants’ employment was fair and not discriminatory.

Whilst this is only a first instance decision and not binding on any other Tribunal, this is an interesting case for any organisation who implemented a ‘no jab,no job’ policy in light of the Covid-19 pandemic and highlights how an Employment Tribunal may approach such cases, particularly in the care sector.

Current care sector guidance continues to reference vaccination as one of the many mitigation measures against risks associated with Covid. Recently updated guidance (applying in England) specifically confirms that risk assessments should take into account the vaccinated status of care workers and those they care for. This case emphasises the importance of due process, particularly robust risk assessment, in informing this type of complex decisions. The sufficiency and suitability of a risk assessment will be a key consideration for the Tribunal.

This week the Court of Appeal has also issued an interesting judgment arising out of the pandemic. The CoA considered whether an employee had been automatically unfairly dismissed under section 100(1) of the Employment Rights Act 1996 for refusing to attend his workplace during lockdown as he was concerned about catching Covid-19 and passing it to vulnerable family members. We will consider this case in more detail during our next Employment Law Lab webinar towards the end of January. More details to follow.

Burness Paull can provide advice at every stage of any employment decision to ensure the right course of action.

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