G Masiero & Ors v Barchester Healthcare Limited

The Employment Appeal Tribunal dismissed the appellants' challenges to an Employment Tribunal decision that dismissals for refusal to comply with an employer vaccine policy were fair. The EAT held that the Tribunal correctly applied section 98 of the Employment Rights Act 1996 and undertook the required balancing exercise when assessing whether dismissal was fair in all the circumstances. The Tribunal lawfully treated the employer's aim of reducing Covid-19 risk to vulnerable care‑home residents (including protecting Article 2 rights) as a legitimate and weighty justification for interference with employees' Article 8 rights, and it properly concluded that the policy did not amount to forced medical treatment or deprive employees of free and informed consent.

The EAT rejected arguments that the Tribunal misapplied Catamaran Cruisers or failed to follow the balancing guidance in Scott & Co, and found no legal error in the Tribunal's reliance on and application of Peters and Vavřička. The Tribunal's conclusion that one claimant's dismissal was procedurally fair despite some process shortcomings was not perverse.

Background and parties: The appellants were four care‑home employees dismissed in May/June 2021 after refusing to comply with the respondent employer's vaccine policy requiring Covid‑19 vaccination unless medically exempt. The respondent had implemented its policy some months before the government enacted broadly similar Regulations in November 2021 (the 2021 Regulations). The Employment Tribunal dismissed the unfair dismissal claims and, where raised, the equality claims. The appellants appealed to the Employment Appeal Tribunal.

Nature of the claim and relief sought: The appellants challenged their dismissals as unfair under the Employment Rights Act 1996 and, in one case, advanced discrimination and belief claims under the Equality Act 2010. They sought reversal of the Tribunal's findings and that dismissals be declared unfair.

Procedural posture: The Employment Tribunal issued a Reserved Judgment (sent to the parties on 29 November 2022) dismissing claims. Permission to appeal to the EAT was granted to the appellants in the terms set out in the judgment. The EAT heard the appeal and delivered this unanimous judgment dismissing it.

Issues framed:

• Whether the Tribunal erred in applying the two‑part Catamaran test and/or in failing to carry out the balancing exercise (Scott & Co) when assessing fairness under s 98 ERA 1996;
• whether the Tribunal misapplied or misunderstood Article 2 ECHR, including whether Article 2 could justify interference with Article 8 rights;
• whether the vaccine policy amounted to forced medical treatment or deprived employees of free and informed consent;
• whether the Tribunal should have declined to follow or misapplied Peters and Vavřička; and
• whether a finding that a particular dismissal was procedurally fair was perverse given identified shortcomings.

Court's reasoning and conclusions: The EAT held that the Tribunal correctly identified a potentially fair reason for dismissal — the employer's genuine and substantial aim of reducing Covid‑19 risk to residents — and properly applied s 98(4) ERA 1996 when assessing fairness. The Tribunal carried out the required balancing of competing interests, including the employees' Convention rights and the residents' protection (Article 2 and Article 8 interaction), using the X v Y/Turner framework and the band of reasonable responses. The EAT rejected the contention that Catamaran required an additional enquiry into whether employees acted unreasonably by refusing new terms; instead the Tribunal need only be satisfied the employer had a sound business reason and then assess fairness in all the circumstances. The Tribunal correctly treated the employer's aim of protecting life as a weighty justification that could in principle justify interference with Article 8, and it was entitled to conclude that even a small reduction in risk could outweigh the appellants' Article 8 interests given the context. The Tribunal correctly held the policy did not equate to forced medical intervention because no vaccination was imposed and employees retained choice. The EAT also held the Tribunal lawfully relied on and applied guidance from Peters and Vavřička as persuasive authorities. Finally, the EAT found the Tribunal's assessment that one claimant's procedural shortcomings did not render dismissal unfair was open to it and not perverse.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had correctly applied section 98 ERA 1996, properly conducted the balancing exercise of competing Convention and statutory interests, and lawfully concluded that the employer's vaccine policy and the resulting dismissals were compatible with Convention rights and were substantively and procedurally fair. The Tribunal did not err in law in its treatment of Article 2, in its assessment of consent or in its use of Peters and Vavřička as persuasive authority; the finding on procedural fairness in respect of Mrs Hussain was not perverse.

Employment Tribunal Reserved Judgment (sent to the parties on 29 November 2022) dismissed the claimants' unfair dismissal and, where applicable, equality claims. Permission to appeal to the Employment Appeal Tribunal was granted to the appellants (permission decisions by Deputy High Court Judges John Bowers KC and Sarah Crowther KC as described in the judgment). The Employment Appeal Tribunal ([2024] EAT 112) heard the appeal and dismissed it on 11 July 2024.