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Unvaccinated care workers lose unfair dismissal claim

Care home workers who refused to get Covid vaccinations were fairly dismissed by their employer, an employment tribunal has ruled.

Five healthcare workers – one nurse, one laundry worker and three care assistants – were fired from Barchester Healthcare after declining Covid vaccinations without having a medical exemption.

Laundry assistant Joanna Hussain and care assistant Ilona Motiejuniene refused the vaccine for religious reasons, with the latter claiming God would protect her from any virus. Both had claims of religion and belief discrimination also dismissed by the tribunal.

The tribunal ruled in favour of the company, deciding it was doing what was necessary to protect clinically vulnerable lives. 

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Employment Judge Neil Maidment said: "Barchester Healthcare was seeking to minimise the risk of death, putting genuine value on the saving of any resident's life.

"Any contrary attitude from a care home provider might have been regarded as disturbing. The tribunal concludes that any interference with human rights in the circumstances of this case was proportionate."

Care workers were legally required to be vaccinated from November 2021 and vaccinations were going to be mandatory for all NHS workers before a last minute u-turn in January 2022 by then health secretary Sajid Javid.

Matt Jenkin, employment specialist at law firm Moorcrofts, said it was unlikely that an employer would be able to get away with such a course of action today. 

He told HR magazine: “In this case, context is everything. At the time of the dismissals, which predated the statutory requirements for vaccination, we were still very much in the grip of the Covid pandemic. Given that, and the fact that the employer in this case is one of the largest care home providers in the UK, the outcome of the case did not come as huge surprise.

"The tribunal judge was satisfied that the requirement that the company’s employees were vaccinated was a legitimate aim, namely the minimising the risk of death and serious illness amongst residents and staff' and such a move was 'necessary in a democratic society'.

"However, employers should be aware that the position today is likely to be different. With the revocation of the statutory requirements for care home, health and social care workers, it is likely to prove harder for employers to justify a mandatory requirement.”