Oscar Davies of the Garden Court Chambers Employment Law Team acted for three of the claimants in this matter.
Read the full judgment: 1) Miss G Masiero 2) Mrs J Hussain 3) Miss S Chadwick 4) Ms G Dimitrova v Barchester Healthcare Ltd: [2024] EAT 112
The Employment Appeal Tribunal (EAT) has provided guidance on the correct approach when dealing with competing Convention rights (under the European Convention of Human Rights (ECHR) and Human Rights Act 1998) in the context of unfair dismissal claims, in this case with care home workers who were dismissed for not taking the Covid-19 vaccine.
Background
The Claimants were employed by the respondent healthcare provider until they were dismissed in May/June 2021 for refusing to be vaccinated against Covid-19, in accordance with the respondent’s policy requiring all staff to be vaccinated unless medically exempt.
The respondent adopted the policy approximately six months in advance of the government mandating the same policy for all care homes, by way of legislation in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which came into force in November 2021, and were revoked in March 2022.
The case concerned the proportionality of firing individuals who did not want to take the vaccine, and their Article 8 ECHR rights (to private life) versus the Article 2 ECHR rights (right to life) of patients in the care home. The first instance Tribunal found the claimants’ dismissals to be fair.
Appeal
On appeal, the Claimants alleged that the Tribunal had erred in law in how it had weighed their human rights against those of the care home residents, and in the approach that the Tribunal took to Article 2 ECHR (right to life).
The EAT dismissed the appeal, stating that there was no error of law in the Tribunal’s decision. It stated that it had properly applied s 98 of the Employment Rights Act 1996, and properly concluded that the claimants’ dismissals were compatible with their rights under the European Convention on Human Rights and the Human Rights Act 1998.
The EAT maintained the Tribunal had rightly concluded that the respondent’s policy did not involve the imposition of a mandatory requirement to submit to medical treatment in abrogation of the claimant’s right to free and informed consent.
The EAT also stated that the Tribunal had rightly concluded that the interference with the claimants’ Article 8 rights was justified in pursuit of the respondent’s aims of (among other things) protecting care home residents’ rights to life under Article 2 ECHR. It maintained that the Tribunal's decision that one claimant’s dismissal was procedurally fair, despite some shortcomings in the process, was not perverse.
The EAT gave guidance on the correct approach when there are competing human rights in unfair dismissal claims, paragraph 69:
“First, as the Tribunal properly appreciated, having directed itself by reference to X v Y [2004] ICR 1634 and Turner v East Midlands Trains Ltd [2013] ICR 525, Convention rights only come into play in the context of an unfair dismissal claim against a private employer by virtue of the Employment Tribunal being a ‘public authority’ for the purposes of s 6 of the HRA 1998, and also by way of the interpretative obligation in s 3 of the HRA 1998.
The requirement is for the Tribunal to be satisfied that the state will not have breached the claimants’ rights under Article 8 of the ECHR if the Tribunal finds the dismissal to be fair. Convention arguments in this context provide a ‘floor’, not a ‘ceiling’. In other words, while the Tribunal should, interpreting s 98 ERA 1996 compatibly with the Convention, hold to be ‘fair’ any dismissal that would otherwise constitute an unlawful interference with the claimants’ Article 8 rights, it is not the case that someone can only be (fairly) dismissed if not dismissing would result in a breach of someone else’s Convention rights.
Further, as the Court of Appeal in Turner observed at [57] (in the passage cited by the Tribunal in its judgment at [197]), in the vast majority of cases application of the ordinary principles of unfair dismissal law under s 98 ERA 1996 will secure compliance with the procedural safeguards required by Article 8 of the ECHR.”
