1) Miss G Masiero 2) Mrs J Hussain 3) Miss S Chadwick 4) Ms G Dimitrova v Barchester Healthcare Ltd
| Jurisdiction | UK Non-devolved |
| Court | Employment Appeal Tribunal |
| Judge | Judge Stout,Mr D Smith,Mr A Morris |
| Published date | 12 July 2024 |
Judgment approved by the court Masiero & ors v Barchester Healthcare Ltd
© EAT 2024 Page 1 [2024] EAT 112
Neutral Citation Number: [2024] EAT 112 Case No: (1) EA-2023-000110-RN
(2) EA-2023-000394-RN
(3) EA-2023-000407-RN
(4) EA-2023-000409-RN
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 11 July 2024
Before :
JUDGE STOUT
MR D SMITH
MR A MORRIS
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Between :
(1) MISS G MASIERO
(2) MRS J HUSSAIN
(3) MISS S CHADWICK
(4) MS G DIMITROVA
Appellants
- and -
BARCHESTER HEALTHCARE LIMITED Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Edward Lowe (instructed by National Employees Union) for the First Appellant
Oscar Davies (instructed by Tilbrook’s Solicitors) for the Second, Third and Fourth Appellants
Caspar Glyn KC (instructed by Weightmans LLP) for the Respondent
Hearing date: 27 June 2024
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JUDGMENT
Judgment approved by the court Masiero & ors v Barchester Healthcare Ltd
© EAT 2024 Page 2 [2024] EAT 112
SUMMARY
HUMAN RIGHTS (18) – UNFAIR DISMISSAL (11)
The claimants were employed by the respondent healthcare provider until they were dismissed in
May/June 2021 for refusing to be vaccinated against Covid-19 in accordance with the respondent’s
policy requiring all staff to be vaccinated unless medically exempt. The respondent adopted the policy
approximately 6 months in advance of the government mandating the same policy for all care homes
by way of legislation in the Health and Social Care Act 2008 (Regulated Activities) (Amendment)
(Coronavirus) Regulations 2021, which came into force in November 2021 and were revoked in March 2022.
The Tribunal found the claimants’ dismissals to be fair.
Held, dismissing the appeal:-
There was no error of law in the Tribunal’s decision. It had properly applied s 98 of the Employment Rights
Act 1996, and properly concluded that the claimants’ dismissals were compatible with their rights under the
European Convention on Human Rights and the Human Rights Act 1998. It had rightly concluded that the
respondent’s policy did not involve the imposition of a mandatory requirement to submit to medical treatment
in abrogation of the claimant’s right to free and informed consent. It had rightly concluded that the interference
with the claimants’ Article 8 rights was justified in pursuit of the respondent’s aims of (among other things)
protecting care home residents’ rights to life under Article 2. The decision that one claimant’s dismissal was
procedurally fair despite some shortcomings in the process was not perverse.
Judgment approved by the court Masiero & ors v Barchester Healthcare Ltd
© EAT 2024 Page 3 [2024] EAT 112
JUDGE STOUT, MR SMITH AND MR MORRIS:
Introduction
1. The appellants were the claimants before the Employment Tribunal and we will refer to them
as such. This is our unanimous judgment.
2. This case concerns the claimants’ dismissals by Barchester Healthcare Limited (the
Respondent) in May/June 2021 for refusal to comply with the respondent’s then newly-
introduced policy requiring all staff to have been vaccinated against Covid-19 (unless
medically exempt). By a Reserved Judgment sent to the parties on 29 November 2022, the
Tribunal (Employment Judge Maidment, sitting with Members in the case of Mrs Hussain)
dismissed the claimants’ claims of unfair dismissal and dismissed Mrs Hussain’s claims of
direct and indirect religion and belief discrimination.
3. The claimants appeal against that judgment. Miss Masiero is represented separately to the
other three claimants. Miss Masiero was granted permission to appeal by John Bowers KC
(sitting as a Deputy High Court Judge) on three out of the six grounds advanced in her Notice
of Appeal. The other appellants were granted permission to appeal by Sarah Crowther KC
(sitting as a Deputy High Court Judge) on all their grounds of appeal, three of which
overlapped with those of Miss Masiero.
4. Mr Glyn KC in his skeleton argument for the respondent combined the grounds of appeal into
six grounds of appeal, which we have found it convenient to adopt. The grounds are as
follows:-
Ground 1: erred by failing to carry out the second part of the two-part test for unfair
dismissal for some other substantial reason (SOSR), as set out in Catamaran Cruisers
Ltd v Williams [1994] IRLR 386;
Ground 2: erred in law by failing to carry out the balancing exercise endorsed in Scott
& Co v Andrew Richardson (EAT/0074/04), as originally from Catamaran Cruisers;
Ground 3 (formerly Miss Masiero’s Ground 6): erred in law by failing to correctly
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