L Akester & Ors v Burlington Care (Yorkshire) Ltd & Ors

Non-binding governmental guidance does not instruct, cause, induce or knowingly help an employer’s indirect discrimination merely because employers may follow it. That conclusion is especially clear where the guidance accurately reflects the governing regulation, leaves implementation decisions to registered managers, and correctly advises that dismissal is not automatic and alternatives must be explored.

For the former care-home vaccination requirement, clinical reasons meant medical reasons. Religious or philosophical belief, bodily autonomy, disability, pregnancy, fertility or breastfeeding did not automatically establish such a reason, although individual circumstances could provide evidence of one. A strike-out application may determine a disputed legal issue if it has been fully argued and it is fair to do so.

During the Covid-19 pandemic, regulation 12(3)(b) of the care-home regulations prevented registered managers from allowing unvaccinated care-home workers to enter unless satisfied that the worker should not be vaccinated for clinical reasons. The claimants were unvaccinated care-home workers who had been dismissed. Their claims of unfair dismissal and indirect discrimination against their employers remained to be tried.

They also alleged that the Secretary of State and the Department of Health and Social Care were jointly liable under sections 111 and 112 of the Equality Act 2010. They relied on departmental operational and medical-exemption guidance. The Employment Tribunal at Leeds struck out those claims as having no reasonable prospect of success.

The appeal concerned whether the Guidance construed clinical reasons too narrowly and whether issuing it could amount to instructing, causing, inducing or knowingly helping any indirect discrimination by the employers.

1. Appeal dismissed. The Employment Tribunal did not err in striking out the claims against the Secretary of State and DHSC. The ruling did not determine the claimants’ discrimination or unfair-dismissal claims against their individual employers.

2. A tribunal considering strike-out must proceed with caution where a point described as law may depend on disputed facts, or where a legal point has not been fully argued. It may nevertheless resolve a disputed legal issue where it is fair to do so and the underlying claim, taken at its highest, has no reasonable prospect of success.

3. Regulation 12(3)(b) imposed a mandatory prohibition on entry to the care home, not a direct obligation upon a worker to be vaccinated. Its reference to evidence which satisfied the manager that, for clinical reasons, a worker should not be vaccinated meant medical reasons. The manager’s satisfaction had a subjective element, but the underlying question was objective. A belief, personal concern, disability or protected characteristic was not, without more, a clinical reason; particular circumstances might nevertheless supply evidence of a medical reason.

4. The Operational Guidance and Medical Exemptions Guidance did not narrow that statutory concept. They used equivalent language, gave non-exhaustive examples, referred to other medical conditions and left registered managers to select appropriate procedures. They did not tie clinicians’ hands, require dismissal, or mislead employers about redeployment, alternatives to dismissal, equality law or the limited scope of the Schedule 22 exemption.

5. On its undisputed content and non-binding status, the Guidance could not arguably have instructed, induced or caused an employer’s unlawful indirect discrimination under section 111. Nor could its issue amount to knowingly helping such discrimination under section 112. Knowingly helping requires closer assistance with the principal act than encouragement, inducement, causing or procuring. No other pleaded basis of liability against the Government respondents was arguable.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 111.
• Employment Tribunal, Leeds: At a preliminary hearing, struck out the claims against the Secretary of State and DHSC, together with claims against other non-employer respondents, as having no reasonable prospect of success.