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Healthcare Newsletter – Case law update – Autumn 2023

Even though it is some time since the lockdown came to an end, Tribunals have dealt with a number of cases relating to the way in which Covid is dealt with in the workplace. Two cases this year illustrate the Tribunals’ approach.

Unreasonable health and safety concerns around social distancing

the Employment Tribunal had to consider claims by a driving examiner in relation to the response to the pandemic.

The Claimant was diagnosed with chronic kidney disease (CKD), misdiagnosed at the time as Stage IV, but later confirmed as Stage II. All driving tests (except critical tests) were cancelled due to the Covid lockdown. When they restarted in July 2020, the DVSA required examiners to return to work except the “clinically extremely vulnerable”. As the Claimant was “clinically vulnerable” he had to return to work. He eventually resigned and claimed constructive dismissal, automatically unfair dismissal due to health and safety concerns, and disability discrimination.

His health and safety claims were unsuccessful. He needed to show that there was a ‘serious or imminent’ danger. However, the Tribunal found that he had ‘lost objectivity’ because he insisted on nothing less than 2 metres social distancing, which obviously wouldn’t have been practical in a test situation. The case shows the level of detail a Tribunal will look for. The Claimant did not have his own medical evidence, there was no Occupational Health report to support his view, and the information from a leading charity, Kidney Care UK, suggested that his condition was at the lower end of risk. The Tribunal described his views as unreasonable.

His disability discrimination claims failed primarily because the Tribunal did not accept he was a disabled person, and that his condition did not cause a substantial adverse effect on his ability to carry out day-to-day activities. However, it also decided that it was his views on health and safety and not his health condition which kept him away from work.

The Claimant appealed. The Employment Appeal Tribunal (EAT) rejected his appeal in relation to his dismissal and the health and safety concerns – a decision which emphasises the high standards expected by Tribunals in these claims. However, the EAT allowed the appeal in relation to the disability discrimination claims as the Tribunal had not been clear on what the ‘unreasonable beliefs’ were, when it had described some of his views as being reasonable.

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Ethical veganism and the Covid vaccine

A Tribunal considered a claim that a care home worker was entitled to refuse the Covid vaccine on the basis that she was an ethical vegan. Again, the case illustrates the rigorous approach Tribunals will take in cases like this.

The Claimant, who worked on the bank for a care home, claimed that she was exempt from having the vaccine as she was an ethical vegan. She also claimed that the vaccine was unsafe and had unknown side-effects. She was dismissed when the law required care home staff to be vaccinated in 2021. She then brought claims of unfair dismissal and religion or belief discrimination.

Ethical veganism has already been established as a belief that it worthy of protection by Tribunals, but the Claimant could not establish that it was a genuinely held belief. She claimed that by itself her vegan diet was ethical veganism, but she could not say when she first held her beliefs. She had also behaved in ways that were inconsistent with these beliefs, for example, she had made no adjustments at or outside work to avoid products that used animal products. Her objections to the vaccine also had little to do with veganism. On that basis, the religion or belief claims failed. As she worked on the bank, she had insufficient continuity of service to bring a claim of unfair dismissal.

For claims relating to religion or belief, it is obviously insufficient for an employee simply to point to a well known religion or philosophy. They must also show that it is their ‘protected characteristic’, that it is genuinely held, and that it will impact on the issues of their claim, in this case the impact of the vaccine. Tribunals will not simply accept any claim that a person’s views are valid and deeply held unless they see clear evidence of this.