Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimants were employed by the respondent as healthcare providers in their care homes. They were dismissed in May or June 2021 after refusing to be vaccinated against Covid-19 contrary to the respondent’s policy requiring all staff to be vaccinated unless medically exempt. The policy was adopted 6 months ahead of the government mandating it for care homes. The claimants brought claims for unfair dismissal.
Outcome:
The claimants argued that the decision to dismiss and the decision to require vaccination was contrary to their rights under the Human Rights Act 1998 and the European Convention on Human Rights. The Tribunal and the EAT both stated that the policy did not involve the imposition of a mandatory requirement to submit to medical treatment against the claimant’s right to free and informed consent. The Tribunal did recognise that there was an interference with the claimant’s right to family and private life under Article 8 but that such an interference was justified considering the respondent’s aims of protecting care home residents’ rights under Article 2, the right to life.
Practical Guidance for Employers:
An interesting case from the time of the pandemic relating to mandatory vaccination. The EAT makes it clear that whilst there is an interference with human rights in requiring vaccination to continue in the employment it was not a breach of those rights. Many of the rights, including the right under Article 8 for family and private life, are not absolute but rather they are qualified. As such where the policy was justified it was acceptable and the dismissals were fair. This can be useful for employers who may be faced with the ‘my human rights are being breached’ argument by employees in relation to work policies. There is a hurdle to be overcome and, in this case, it was not overcome considering the justification.
The full case can be found here:
https://assets.publishing.service.gov.uk/media/668fa7650808eaf43b50cd9a/1_Miss_G_Masiero_2__Mrs_J_Hussain_3__Miss_S_Chadwick_4__Ms_G_Dimitrova_v_Barchester_Healthcare_Ltd__2024__EAT_112.pdf
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