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  • Kiri Thompson

Unfair dismissal in the wake of the pandemic – issues for employers

Although the COVID-19 pandemic now appears to be behind us, and life is returning to normal, echoes of its passing reverberate through the world of employment law. At its height, both employers and government were desperate to try and prevent - or at the very least, limit – its spread and by doing so, save thousands of lives.

One of the sectors in which this need was most important was the care sector, and prior to the government introducing regulations in November 2021, mandating care home workers to be vaccinated (and indeed all persons who entered a care home), many care providers instituted their own policies to deal with what was perceived as very serious threat to both residents and staff.

However, despite a significant take-up of the vaccine, not all employees agreed to have it and, following the clash between policy and personal preference, dismissals were the inevitable result.

Many affected employees sought redress in the Employment Tribunal; recently, a tribunal delivered its judgment in the case of five members of staff at Barchester Healthcare Ltd. The outcome is a reassuring one for employers but gives some valuable insight into how to set up and implement these kinds of policies, which will bear fruit for future instances resembling the pandemic.

The case was that of Mrs G Dimitrova and others v Barchester Healthcare Ltd

What happened?

Barchester Healthcare is a provider of care home services, with around 12,600 residents and 17,000 employees. More than 10% of its residents died of the virus during 2020, as did six of its employees.

Care assistants needed close contact with the residents to deliver the necessary personal care and were required to be flexible, particularly during periods of high demand/staff absences. Concerned about the risk of infection posed by employees entering care homes, even for a short period of time, Barchester implemented approaches including PPE and enhanced hygiene, to mitigate that risk. However, these proved to be only partially effective, as did social distancing measures, PCR testing and lateral flow tests, which were used from December 2020.

Barchester hoped that COVID-19 vaccinations might help to maintain the safety of their residents by reducing the spread of infection and mortality risk. They considered that their healthcare workers had a “professional responsibility” to accept the vaccine when offered.

There was a dedicated vaccine page on Barchester’s intranet to give staff further information including FAQs provided by the Department of Health and Social Care.

In January 2021, Barchester wrote to all residents and relatives expressing its support for the vaccination programme. A further reminder was also emailed to employees encouraging them to have their COVID-19 vaccination when offered. This email included a link to a staff survey, and of the 1,000 employees who completed the survey 88% of the agreed that they would be having their vaccination.

Barchester introduced a vaccination policy, which stated all new staff members had to be vaccinated to be employed by the company and that the company would only promote current staff, and pay discretionary bonuses, to those who had received their COVID-19 vaccinations.

This policy also said the company reserved the right to make vaccination a condition of employment for current staff with a prior notice of 2 months for any changes to take place, having taken in to account any qualifying exemptions.

Barchester introduced this condition of employment to all staff on 24th February 2021. If staff remained unwilling to get the vaccine voluntarily and were not exempt, they would be subject to investigation under disciplinary procedures and could face potential dismissal.

Five employees who had been dismissed under Barchester’s policy during 2021 claimed unfair dismissal at the Employment Tribunal.

· Mrs Motiejuniene, a care assistant. She refused to have the vaccination on the grounds she took care of her health and immune system but did not take medication but did not refer to this as a philosophical belief. She stated she felt “immune” to COVID-19 naturally without need for vaccination. Following a full process, she was dismissed on the grounds of Some Other Substantial Reason (SOSR).

· Mrs Hussain, a laundry assistant. She refused to accept the vaccination on the grounds that she had suffered anaphylactic shocks in the past to penicillin medication. However, despite this her GP had refused to issue her with an exemption letter. Following a full process, she was dismissed on the grounds of SOSR.

· Miss Chadwick – a care assistant. She confirmed that she was aware of the policy and that she did not have a medical exemption. She was concerned that the vaccine was experimental and that its long-term effects were not known. She also stated she had already had COVID-19 and she was “okay”. Following a full process, she was dismissed on the grounds of SOSR.

· Miss Dimitrova – a qualified Nurse. She said that she was aware of the policy, did not have a medical exemption, and had refused to be vaccinated as she felt that the vaccine needed to be tested for longer and she “did not trust it”. Following a full process, she was dismissed on the grounds of SOSR.

· Miss Masiero – a care assistant. She said that she was not having the vaccine on the basis that her body and immune system were able to fight off any virus. She also raised potential risks to fertility. She was aware of the position taken by the president of the Royal College of Obstetricians and Gynaecologists, but felt she needed more information and wanted to wait for statistics. Following a full process, she was dismissed on the grounds of SOSR.

All five claimants appealed their dismissals, but they were unsuccessful.

As well as the claims of unfair dismissal, Mrs Hussain and Mrs Motiejuniene brought additional claims of direct and indirect religion and belief discrimination, and Mrs Motiejuniene brought separate complaints of harassment related to religion/belief.

What is SOSR?

Some Other Substantial Reason (SOSR) cases often involve changes to contracts of employment which are driven by a need to save money or increase efficiency by organisational change.

It is a wide-ranging potential “catch all” category for a potentially fair dismissal, but solely asserting a reason isn’t sufficient. It would need to be backed up with evidence to show why it was considered necessary.

[Find out more about SOSR in our blog post]

The tribunal’s reasoning.

The tribunal had been clear from the outset that it was not up to them to assess the dangers of COVID, nor the effectiveness or safety of any vaccine. It just addressed the question of whether requiring staff to be vaccinated – and dismissal of those who refused - was a proportionate means of achieving a legitimate aim – in this case, saving the lives of staff and residents.

Barchester was able to show that it had already tried other means of protection but found them lacking. The adoption of a vaccination policy therefore was, in their mind, entirely justified and the tribunal concluded that while human rights might have been interfered with, that interference – in the circumstances of this case - was proportionate.

The claims of unfair dismissal all failed and were dismissed. Mrs Hussain’s and Mrs Motiejuniene’s claims of direct and indirect religion and belief discrimination failed and were dismissed. Mrs Motiejuniene’s claim of religion and belief-related harassment failed and was dismissed.

The law around fair and unfair dismissals is complex and it is easy to get it wrong, even with the best of intentions. In situations such as this case, expert legal guidance is key to understanding what the law says and how to defend claims made against an employer.

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