Masiero & Others v Barchester Healthcare Ltd – Fair dismissal in the care home setting
In the Masiero case, the Respondent employer was a care home company, Barchester Healthcare Ltd (BH Ltd). During the coronavirus pandemic, the employer enacted a policy which required all staff working in their care homes to be vaccinated against COVID-19, unless exempt for medical reasons.
At this time, the Government had not introduced a requirement to be vaccinated across all care homes, unless exempt. Employees were made aware that if they did not wish to get the vaccine voluntarily, but were not exempt, they would be subject to disciplinary investigation which may result in dismissal. Five employees refused the vaccine and were subsequently dismissed.
The employees proceeded to bring claims of unfair dismissal. Some of the claims also included direct/indirect religion and belief discrimination, and one harassment claim based on religion and belief.
The Tribunal dismissed the claims of unfair dismissal.
It was held that the reason for the policy was to reduce the risk of serious illness, and even death, primarily amongst residents, but also staff and those visiting. It was held that a refusal to adhere to the policy was therefore a potentially fair reason for dismissal, falling under the ‘some other substantial reason’ ground for dismissal. In addition, the Tribunal explained that in relation to the substantive fairness of the dismissal, there was a balancing act required, namely between the Respondent’s aim of protecting life, and the employees right to enjoy a private life, each under the European Convention on Human Rights.
The Tribunal determined that the interference with the right to a private life was justified by the Respondent’s legitimate aim of minimising the risk of death/illness, and therefore the dismissals were a proportionate means of achieving the aim.
The employees appealed to the EAT.
The EAT dismissed the appeal, and highlighted that even where an employee acts reasonably in refusing to adhere to new terms and conditions, there will be instances where the employer will be justified in imposing the terms and dismissing, where there is a sound business reason. The focus here was the extent to which the vaccination might have reduced the risk
posed to the lives of the residents. The protection of right to life was considered to be a ‘very weighty justification for an interference with Article 8’ of the European Convention on Human Rights’ i.e. the right to enjoy a private life. It was therefore entirely open to the Tribunal to determine that a small reduction to the risk to life was sufficient in outweighing the employees’ rights under Article 8. This was specifically relevant as the care home’s primary function was to ensure the wellbeing of its residents.
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