William Lane

In 2021, the UK government issued regulations requiring staff working in Care Quality Commission-regulated facilities to be vaccinated against Covid-19. Whilst the vast majority of employees obtained the vaccine, various care facility operators encountered individuals who refused to do so. A substantial number of those employees were ultimately dismissed based on their refusal.

As was perhaps inevitable, claims from those ex-employees are now working their way through the Employment Tribunal system – featuring allegations that those dismissals were unfair and unlawful. Most of those claims are in England – the extent of the CQC’s jurisdiction – but certain aspects of the situation will be of interest to employment lawyers in Scotland, given the similarities in statutory employment law and Employment Tribunal procedure in the two jurisdictions.

Regulation issued – and then revoked

Under the UK government regulations, the deadline for care sector employees to be double vaccinated was 11 November 2021. The requirement was relatively short-lived, however. On 31 January 2022, Health Secretary Sajid Javid announced plans to abolish it – with the regulations duly revoked from 15 March 2022.

As a result of the revocation – and the time lag for cases to progress through the Employment Tribunal system – care facility operators must now defend dismissals founded upon regulations that no longer exist. Whilst an Employment Tribunal will assess the fairness of dismissal with regard to the circumstances at the time it took place (London Ambulance Service NHS Trust v Small), it is difficult not to have some sympathy for ex-employees who – at least on one view – were unfortunate to be “caught up” in the four-month window during which the vaccination requirement was live. One can also empathise with care facility operators who, in the period from 31 January to 15 March 2022, were faced with a situation where the regulations remained in force – despite a publicly-stated plan to abolish them.

Philosophical beliefs

As well as putting forward complaints of unfair dismissal, various ex-employees allege that they refused vaccination due to a philosophical belief – and their dismissals accordingly amounted to unlawful discrimination contrary to the Equality Act 2010. The philosophical beliefs asserted by ex-employees range from relatively mainstream views (e.g. belief in the right to bodily self-autonomy) to those that may seem extreme (e.g. belief that vaccination is a global conspiracy concocted by shadowy, “deep state” type authorities).

Whether a particular philosophical belief qualifies for protection under the Equality Act 2010 is in itself a developing area of law, as evidenced by the Employment Appeal Tribunal’s recent judgment in the context of gender-critical beliefs in Forstater v CGD Europe. It will therefore be interesting to see where Employment Tribunals draw the line between beliefs that qualify for protection, and those that are simply too extreme to do so. One criterion for assessing if a particular belief qualifies for protection is whether it has attained a certain level of cogency, seriousness, cohesion and importance: it may well be here that the more extreme “vaccine-critical” beliefs fall down.

Case management

At least 125 of the Employment Tribunal cases currently in the system have been brought not only against the relevant care facility operators, but also public entities and figures allegedly responsible for the introduction of the UK government regulations, namely the CQC, its chief executive Ian Trenholm, the Department for Health and Social Care, and Mr Javid. In response, the President of Employment Tribunals (England and Wales) ordered all of those cases to be combined and case-managed together by the Leeds Employment Tribunal.

Whilst it is common for related Employment Tribunal cases to be combined (e.g. in equal pay litigation), combined cases usually feature a large number of claimants – i.e. ex-employees – and a small number of respondents – i.e. ex-employers. In this instance, however, the combining exercise will result in many care facility operators – who may well be commercial competitors to one another and each have their own legal representation – being brought together as co-respondents. Whether this leads to co-operation between competing operators and, for that matter, their legal representatives, very much remains to be seen.

William Lane is a senior employment law adviser and solicitor at WorkNest