Karen Shanks v Lothian Health Board
[2023] EAT 148
G Masiero & Ors v Barchester Healthcare Limited
11 July 2024
[2024] EAT 112
Employment Appeal Tribunal
Four care home workers were fired for refusing the COVID-19 vaccine. A judge ruled the firings were fair because protecting the lives of vulnerable residents outweighed the workers' rights. The decision emphasized that while the workers had a right to choose, the employer also had a right to protect its residents. A higher court agreed with this decision.
Key Facts
- •Four care home workers (claimants) were dismissed by Barchester Healthcare Limited (respondent) in May/June 2021 for refusing a mandatory COVID-19 vaccination.
- •The respondent's policy predated government mandated vaccination for care homes.
- •The Employment Tribunal found the dismissals fair.
- •The claimants appealed, raising six grounds of appeal concerning unfair dismissal and human rights violations.
Legal Principles
Unfair dismissal for some other substantial reason (SOSR) requires a two-part test: (1) employer's motives are sound business reasons, not arbitrary; (2) employee's refusal is unreasonable considering the employer's necessity.
Catamaran Cruisers Ltd v Williams [1994] IRLR 386
In assessing fairness under s 98(4) ERA 1996, a balancing exercise should consider advantages to the employer and disadvantages to the employee. Tribunals should consider all relevant factors, not just those explicitly listed in case law.
Scott & Co v Andrew Richardson (EAT/0074/04)
Article 8 ECHR (right to respect for private and family life) can be interfered with if in accordance with the law and necessary in a democratic society for the protection of health or the rights and freedoms of others (including Article 2 rights).
ECHR Article 8
Article 2 ECHR (right to life) imposes a positive obligation on the state to take steps to safeguard lives. This can justify interference with Article 8 rights even without showing that, without such steps, Article 2 would be breached.
ECHR Article 2, Boso v Italy
Dismissal is not unfair simply because there were procedural shortcomings. The overall fairness of the process must be assessed under s 98(4) ERA 1996.
Taylor v OCS Group Ltd [2006] ICR 1602
Outcomes
Appeal dismissed.
The Employment Tribunal correctly applied the law, its findings were not perverse, and the claimants’ arguments were rejected on all grounds.