Ms J Kerr of Counsel For the v Respondent — 2022

This was a preliminary hearing, not a final merits hearing. The tribunal considered strike out and deposit order applications in claims for unfair dismissal and direct discrimination because of religion or belief. It heard no oral evidence and made no findings binding at a final hearing. It accepted that the claimant relied on a belief that the Covid-19 vaccine should not be required, together with a Roman Catholic objection said to arise from the use of aborted foetal cell lines, and that the respondent relied on the 2021 Regulations governing care home workers.

On the direct discrimination claim, the tribunal held that the claimant’s chosen actual comparator, Carla Felix, was materially different because Ms Felix asserted medical exemption and self-certified to that effect, whereas the claimant repeatedly said he was not relying on any medical exemption. The tribunal also held that a hypothetical comparator in the same or not materially different circumstances would also have been dismissed, because that person would have refused vaccination, had no medical exemption and had not sought redeployment. The tribunal further held that the claimant had not shown that dismissal was because of the protected characteristic relied upon, but rather because the respondent was not allowed by reason of the 2021 Regulations to permit him to work unvaccinated in a regulated home.

The tribunal declined to strike out the discrimination claim, noting the caution required by Anyanwu, but it found that claim had little reasonable prospect of success and ordered a £200 deposit. For the unfair dismissal claim, the tribunal rejected the arguments that the claimant had not been told about self-certification, that Ms Felix was treated differently on materially similar facts, or that the respondent should have redeployed him without vaccination. It held that the respondent had a valid reason for dismissal, that the reliance on the 2021 Regulations amounted to some other substantial reason such as to justify dismissal, and that the procedure was fair and reasonable and within the band of reasonable responses. That claim also was not struck out, but it was made subject to a separate £200 deposit order. The tribunal reduced each deposit to £200 having regard to the claimant’s means as a student.