G Masiero & Ors v Barchester Healthcare Limited

For a dismissal for some other substantial reason arising from refusal to accept a contractual change, the employer need show a sound business reason. The statutory question remains whether dismissal was fair in all the circumstances under Employment Rights Act 1996, section 98(4). It does not depend on whether the employee acted unreasonably in refusing the change.

In an unfair-dismissal claim against a private employer, Convention rights provide a minimum safeguard through the tribunal’s public-authority and interpretative duties. A vaccination policy which leaves the employee free to refuse vaccination, while attaching employment consequences to that choice, does not compel medical treatment. Interference with Article 8 may be justified by the protection of vulnerable residents’ health and lives, even without proving that refusal to dismiss would breach Article 2.

The claimants worked for a care-home provider. In May and June 2021 they were dismissed after refusing vaccination against Covid-19 under a policy requiring staff to be vaccinated unless medically exempt.

The Employment Tribunal dismissed their unfair-dismissal claims. It found that the policy sought to reduce infection, death and serious illness among vulnerable residents and that the dismissals were substantively and procedurally fair. It also dismissed Mrs Hussain’s discrimination claims.

On appeal, the claimants challenged the Tribunal’s application of the some-other-substantial-reason test, its assessment under section 98, its human-rights reasoning, and, in Mrs Hussain’s case, its conclusion on procedural fairness. The central issue was whether the Tribunal had erred in finding the dismissals fair despite the claimants’ refusal to comply with the vaccination policy.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the unfair-dismissal claims.

2. SOSR and fairness. Catamaran Cruisers Ltd v Williams did not require the Tribunal to decide whether an employee acted reasonably in refusing new terms. A sound business reason could establish a potentially fair reason under section 98(2) of the Employment Rights Act 1996. The separate question under section 98(4) was whether dismissal was fair in all the circumstances. An employee may reasonably decline a change while the employer reasonably dismisses for that refusal.

3. Balancing exercise. The factors identified in Scott & Co v Andrew Richardson were non-exhaustive. The Tribunal had conscientiously considered the disadvantages to the claimants, the benefits and protective purpose of the policy, workforce uptake, and the unions’ views. Its human-rights analysis and wider assessment of fairness fulfilled the required evaluative exercise.

4. Convention rights. The Tribunal, as a public authority, had to apply section 98 compatibly with Convention rights. Convention rights provided a floor rather than a ceiling. The policy pursued protection of health and of others’ rights under Article 8(2), including residents’ right to life. Protecting life was capable of being a very weighty justification for interference with Article 8, without showing that allowing an individual unvaccinated employee to work would itself breach Article 2.

5. Consent and procedure. The policy did not impose involuntary medical treatment. The claimants retained the choice whether to be vaccinated, although refusal had employment consequences. Mrs Hussain’s process had shortcomings, but overall fairness was open to the Tribunal: she had later meetings with an interpreter, a full appeal opportunity, and the omitted material could not have affected the result.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 112.
• Employment Tribunal: By a reserved judgment sent on 29 November 2022, the Tribunal dismissed the claimants’ unfair-dismissal claims and Mrs Hussain’s direct and indirect religion and belief discrimination claims.