The UK’s Privy Council has heard an appeal brought by a former Pines Retirement Home staffer who challenged her dismissal after she was sacked for allegedly refusing to be vaccinated against COVID-19 and bringing the virus into the care home.
Shelliann Bush, who was terminated in November 2021, had taken her complaint of unfair dismissal to the Department of Labour and Pensions, which refused to investigate it because the Pines is a charitable organisation and, as such, is not covered by the Labour Act.
Bush brought a legal claim against the attorney general of the Cayman Islands, claiming that the refusal to hear her unfair-dismissal complaint deprived her of her right to a fair and public court hearing, contrary to Section 7(1) of the Bill of Rights.
In an earlier hearing, the Grand Court had found that the Labour Act was incompatible with Bill of Rights, as employees of non-profits were excluded from the legislation. However, following a subsequent hearing, the Court of Appeal overturned that ruling, finding that staff of registered charitable organisations, like The Pines, have no substantive civil rights under the Labour Act.
The case made its way to the highest appeals court in the jurisdiction, the UK’s Judicial Committee of the Privy Council, on Tuesday, 24 June.
Gross misconduct alleged
Bush, who had worked for The Pines for 10 years, and her colleagues were informed on 20 Oct. 2021, as cases of local transmission of COVID were on the rise, that all staff at the home must provide confirmation of having received a COVID-19 vaccination. They were given a month to comply, or their employment contracts would not be renewed, the court heard.
Bush objected to being vaccinated, and was sacked a month later, on the grounds of gross misconduct, in part because she would not get vaccinated and in part because The Pines alleged that she attended work while unwell and infected other people.
Rupert Wheeler, KC, represented Bush in the hearing at the Supreme Court in London before five Privy Council judges.
Breach of rights?
He explained to the justices that one of the cruxes of the matter was whether Section 3(b) of the Labour Act violated his client’s right to a fair trial, and secondly, whether his client had been denied her right to non-discrimination, as outlined in Section 16 of the Bill of Rights.
He argued that Bush’s dismissal had interfered with her right to carry out her job as an assistant daycare coordinator, and stated that she had a civil right to challenge her dismissal but was given no legal remedy to do so. He said the key question in relation to that submission was “whether Ms Bush’s Section 7 right to a fair trial has been breached due to a lack of access to a court or a tribunal to make a claim relating to applicable civil employment rights”.
Wheeler also argued that Bush’s “right to bodily integrity” – her right not to get vaccinated – was protected under Section 9 of the Bill of Rights, which guarantees a right to private and family life.
David Pievsky, KC, representing the attorney general, in his submissions to the court, said a remedy had been open to Bush, via a civil court action, through which she would have potentially received slightly higher compensation than if the Labour Appeals Tribunal had heard her case, found in her favour and granted compensation.
He told the judges, “We concede that the appellant in this case may have been dismissed for reasons that are innate to her reluctance to take the vaccine,” he said. “I put it that way because obviously there has not been a finding of fact, there is a little bit of lack of clarity as to whether she was dismissed for refusing to take the vaccine or, on the other hand, not having sufficient opportunity to decide if she wished to take the vaccine, that was an element of her proposed unfair dismissal case.
“There is also a completely separate reason given by the employer, which was ‘you were dismissed for coming into work when you were ill, and that was an act of gross misconduct that caused harm’.”
He added, “If you dismiss someone for refusing to take the vaccine, while I would submit that that is unarguably justified in the COVID context and in a care home context, it’s not something I can say has nothing to do with … Section 9 [of the Bill of Rights]. That is not realistic.”
But, he said, the core issue of this appeal is whether the discrimination of which Bush complains – that unfair dismissal rights are granted to workers in the private sector but not to employees of registered charities – falls within the ambit of Section 9.
After a four-hour hearing, the lord justices thanked counsel for both sides and said they would return a ruling on the appeal in due course.
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