| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
‘No Jab, No Job’ Victory for Care Home: Understand the Impact on Your Business
The dismissal of five care home workers who refused to comply with their employer’s ‘no jab, no job’ policy was lawful, an employment tribunal has ruled. With England in the grip of a Covid and flu ‘twindemic’, this is an interesting case for businesses, so how did the tribunal reach this verdict and how far might it be possible for other employers to rely on this ruling?
What Happened?
The case, Dimitrova v Barchester Healthcare Ltd [2022] ET 1803315/2021, was brought by three care assistants, a nurse and a laundry worker following their dismissal by Barchester. In 2020, around one in 10 of the care provider’s residents died with Covid, along with several staff members. By early 2021, data was suggesting the new Alpha variant was 70% more transmissible than previous variants.
Enhanced hygiene measures and personal protective equipment had been only partially effective in reducing Covid’s spread. It was also difficult to maintain social distancing as many residents had dementia and carers needed to be in close contact with them. Another concern was that staff shortages caused by high sickness absence posed a risk to residents.
These issues led Barchester to make vaccination a condition of employment for all staff in February 2021. This was before the government made it mandatory for front-line NHS staff and care workers to be vaccinated in November 2021, a policy which was repealed the following March.
Staff were given 2 months’ notice to get their jabs or face dismissal (for ‘some other substantial reason’). However, the policy didn’t apply to anyone who had a medical exemption or was pregnant. The unions believed the policy to be ‘punitive’ and ‘the wrong approach’.
The five employees brought unfair dismissal claims. Some also claimed religion or belief discrimination or harassment, or interference with their human rights to a private and family life or to freedom of religion.
What Did the Tribunal Decide?
The tribunal judge dismissed all the claims, finding that:
- Barchester did not physically force anyone to have the vaccine. Rather, the company had made clear ‘that vaccination was the choice of the individual, that consent had to be freely given and consent to future vaccinations could be withdrawn at any stage’. Not giving consent led to loss of employment but this was a choice the claimants had.
- The aim of protecting residents’ lives outweighed the claimants’ rights. Barchester’s actions had been proportionate and reasonable.
- Christians and Muslims had taken the vaccine in huge numbers so the policy did not disadvantage them as a group.
How Does this Decision Affect My Business?
This is a welcome ruling for the care sector. Front-line health and social care workers are eligible for the latest Covid booster, so this ruling shows it could be possible to require them to have this. On the other hand, staff shortages may deter care homes from taking what might be seen as a heavy-handed approach. Newer strains of the virus seem to be less life threatening, so it may be harder to justify mandatory vaccination now. It also wouldn’t be possible to require staff who are not patient facing (and therefore not eligible for the booster jab) to be vaccinated.
Outside the care sector, this ruling is likely to be of limited help. Many employees are ineligible for the latest Covid booster or a free flu vaccine, so ‘no jab, no job’ policies aren’t an option. Even if the vaccination programme would be widened out, most employers won’t be facing the same risks that Barchester was at the height of the pandemic.
So What Can We Do?
These are some possible steps you can take in response to the ‘twindemic’:
- Keep encouraging employees to keep up to date with all the vaccinations they’re entitled to.
- Offer staff the flu vaccine privately or notify them that they can arrange a jab via a pharmacy for a small fee if they’re not entitled to a free vaccination.
- Give team members time off work to attend vaccination appointments.
- Consult with staff and any trade unions about whether you should be doing more to reduce the risk of infection in your workplace as cases surge.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Van and Fuel Benefit Charges for 2023/24 Announced
Employees who enjoy the private use of a company van may be taxed on the benefit this provides. The amount that is charged to tax is a flat amount, increased each year in line with the increase in the Consumer Prices Index. This year the increase is 10%.
The charge applying for the 2023 tax year has been announced, alongside the separate van fuel benefit charge.
The multiplier used to work out the fuel benefit charge where fuel is provided for private journeys in a company car has been similarly uprated, and the 2023/24 multiplier has been announced.
Van Benefit Charge
The van benefit charge arises where an employee has a company van that they are able to use for private journeys. The charge is set at £3,960 for 2023/24, up from £3,600 for 2022/23. This will cost a basic rate taxpayer £782 in tax in 2023/24, and a higher rate taxpayer £1,584. The employer must also pay Class 1A National Insurance, at 13.8% for 2023/24.
However, it is possible to reduce the charge to nil, but for the employee to still use the van for home-to-work travel. This will be the case if the van is made available to employee predominantly for business use on terms which prohibit the private use of the van other than for commuting purposes, and no private use of the van is made at other times (or any such private use is insignificant). This condition is known as the restricted private use condition.
Likewise, there is no charge for an electric van, which can be made available for private use without restriction.
Van Fuel Charge
A separate fuel benefit charge arises if the employer meets the cost of fuel for an employee’s unrestricted private use of a company van. The amount charged to tax is a flat amount, set at £757 for 2023/24, up from £688 for 2022/23.
The charge only applies if the van benefit charge applies; consequently, there is no tax to pay on the provision of fuel for home-to-work travel in a company van and the restricted private use condition is met. Likewise, there is no charge if the employer meets the cost of electricity for private travel in an electric company van. This allows the employer to meet the cost of home-to-work travel tax-free.
As the primary threshold changes mid-year, the annual threshold for 2022/23 is £11,908 (rather than £12,570). This is equivalent to 13 weeks at £190 per week and 39 weeks at £242 per week (and equates to a weekly threshold of £229).
Fuel for Company Cars
As with vans, a separate fuel charge applies where fuel is provided for private journeys in a company van. The fuel charge is found by multiplying the appropriate percentage used to work out the company car benefit by the multiplier for the year. The multiplier is set at £27,800 for 2023/24, up from £25,300 for 2022/23.
The charge will not apply if the employee ‘makes good’ the cost of fuel for private journeys by 6 July after the end of the tax year. The amount needed to clear the charge can be calculated using HMRC’s advisory fuel rates.
The fuel benefit charge can be significant. Where the list price of the car is less than the multiplier for the year, the employee will pay more in tax on the provision of ‘free’ fuel than on the car. The employer will also be charge Class 1A National Insurance. Despite high prices, free fuel is only likely to be a tax-efficient benefit if private mileage is high.
HMRC do not regard electricity as a fuel for these purposes. Consequently, there is no charge if the employer meets the cost of electricity for private journeys in an electric company car.