L Akester & Ors v Burlington Care (Yorkshire) Ltd & Ors

During the Covid-19 pandemic, amendments to regulations concerning the provision of care in England were in force between 11 November 2021 and, in the event, 15 March 2022. The amended provisions required the managers of care homes not to permit a care-home worker to enter the premises unless the worker provided evidence that satisfied the manager (a) that they had completed a course of Covid vaccination; or (b) that for clinical reasons they should not be vaccinated.

This appeal arises from ongoing employment tribunal claims brought against that background by multiple claimants, with common representation. Each of them was not vaccinated and was dismissed. Each complains, against their former employer, of unfair dismissal and indirect discrimination, relying on one or more of religion or belief, disability, sex and/or age.

In relation to each claim the first respondent is the relevant former employer. Also named as respondents to some or all of the claims when they began were the Secretary of State for Health and Social Care (SoS), the Department of Health and Social Care (DHSC), the Care Quality Commission (CQC) and Mr Ian Trenholm, who was the CQC’s Chief Executive. Each of them was claimed to be co-liable in respect of the claimed indirect discrimination by virtue of sections 111 and/or 112 Equality Act 2010 on the basis that they each instructed, caused, induced and/or aided it. As we shall see, the focus of those claims, and this appeal, was on guidance issued by the DHSC.

In a reserved judgment arising from a Preliminary Hearing (PH) at Leeds EJ Deeley struck out the complaints against the non-employer respondents as having no reasonable prospect of success. The claimants appeal against the decision to strike out the complaints against the SoS and the DHSC. The other respondents have not participated in the appeal. The regulations were made by the SoS and adopted by both Houses of Parliament; but, the guidance was issued by the DHSC. However, nothing turns on whether the proper respondent is the SoS or the DHSC.

For the purposes of the Health and Social Care Act 2008 care homes in England engage in regulated activities. They are required to be registered and to have a registered manager in respect of each home. Section 20(1) provides that the SoS “must by regulations impose requirements that the [SoS] considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided.” The 2008 Act also created the CQC and conferred upon it registration, review and investigation functions.

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (2014/2936) prescribe various regulated activities, including those of care homes. Other provisions include a requirement, in regulation 12(1), that care and treatment “must be provided in a safe way for service users.” Without limitation to that, further specific provision is made by regulation 12(2). Regulation 22(2) makes a failure to comply with regulation 12 an offence if (inter alia) it results in avoidable harm to a service user or a service user being exposed to a significant risk of such harm.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (2021/851) were made on 22 July 2021 and took effect from 11 November 2021. They were, in the event, revoked with effect on 15 March 2022. While in force they inserted a new sub-regulation 12(3) in to the 2014 Regulations. Relevantly, this provided that a registered person in respect of the provision of accommodation for persons requiring nursing or personal care (“A”) “must secure that a person (“B”) does not enter the premises used by A unless” one of a number of conditions was satisfied. The condition relevant to this appeal, at (b), was expressed as follows:

“(b)

B has provided A with evidence that satisfies A that either—

(i)

B has been vaccinated with the complete course of doses of an authorised vaccine; or

(ii)

that for clinical reasons B should not be vaccinated with any authorised vaccine;”

When I refer hereafter to “regulation 12(3)(b)” I am referring to that provision. For completeness I note that other amendments were made to regulation 12(3), while it remained in force, by further regulations introduced in January 2022, but these are not relevant to this appeal.

In anticipation of regulation 12(3) coming into force, Operational Guidance (OG) was issued by DHSC on 5 August 2021 and updated on 19 October 2021. It referred in turn to Medical Exemptions Guidance (MEG). I will refer to the OG (including the MEG), as “the Guidance”.

The tribunal set out in its decision the following passages from the OG:

“General guidance on medical exemptions

For a small number of people, vaccination is not appropriate due to clinical reasons. These people will be able to seek a clinically approved exemption from this requirement. Individuals should apply formally for a medical exemption – see further information on medical exemptions and how to apply for one.

A temporary self-certification process was introduced in September 2021. The original timeframe permitted self-certification to be used until 24 December 2021, but this was subsequently extended until 31 March 2022. Guidance is available on temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes.

After 31 March 2022, exemptions will need to be evidenced by the formal process. Those who wish to apply for a medical exemption should do so at the earliest opportunity as they will not be able to work in care homes beyond 31 March 2022 without proof of vaccination or a formal exemption, even if they have previously submitted evidence via self-certification.

…

Groups that can get a medical exemption

There are a range of circumstances in which an exemption may be granted, which will reflect the green book on immunisation against infectious disease, chapter 14a, and clinical advice from the Joint Committee of Vaccination and Immunisation.

…

Guidance for registered persons

Overview

Since 11 November 2021, registered persons (the person registered with the CQC as a manager or service provider) must ensure that they do not allow anyone to enter the inside of a care home, unless they have had a complete course of doses of an authorised vaccine or fall into one of the exempt groups.

…

This section aims to give advice to registered persons on the implementation of the regulations. When deciding how to implement the regulations, the registered person must also refer to the code of practice on the prevention and control of infections, which we are currently updating and will publish as soon as possible.

Checking vaccination or exemption status

Registered persons (or those acting on behalf of the registered person) will have to check that all persons wishing to enter the care home have received a full course of vaccinations, unless they are exempt. This includes checking, for example, care home staff, health care professionals, CQC inspectors, tradespeople, hairdressers and beauticians.

The requirement only applies in respect of persons entering the inside of the care home premises and it will be up to the registered person (or those acting on behalf of the registered person) to identify the most appropriate procedures to check vaccination status.

…

It will be up to you, the registered person (or those acting on your behalf), to identify the most appropriate procedures to check the vaccination and exemption status of individuals. You may want to consider the UKHSA’s advice under the previous section ‘Other temporary methods of medical exemption’ when doing so.

…”

Guidance for staff

…

Exemptions

Vaccination may not be appropriate for you due to clinical reasons. In this case, you should apply formally for a medical exemption – see further guidance on medical exemptions and how to apply for one.

A temporary self-certification process was introduced in September 2021. The original timeframe permitted self-certification to be used until 24 December 2021, but this was subsequently extended until 31 March 2022. Guidance is available on temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes.

After 31 March 2022, exemptions will need to be evidenced by the formal process.

Those who wish to apply for a medical exemption should do so at the earliest opportunity as they will not be able to work in care homes beyond 31 March 2022 without proof of vaccination or a formal exemption, even if they have previously submitted evidence via self-certification.

Managers should do a risk assessment for those who are exempt from vaccination. This means they will evaluate the potential risk to the spread of COVID-19 caused by unvaccinated (but exempt) members of staff entering the care home. They may put in place measures to help reduce this risk – for example, by asking exempt members of staff to wear more or different PPE, or by suggesting a change to their duties.

…

Redeployment

If you are unable to provide proof of vaccination or exemption, then your manager should explore all options available to you. This could include moving you to an alternative role for which vaccination is not required. You should speak to your manager about your options as soon as you can. You should not assume that it will be possible for you to be redeployed.

Dismissal

If you are unable to provide proof of vaccination or exemption, then your manager should explore all options available to you. However, you should note that the regulations may provide a fair reason for dismissal if you are not vaccinated or medically exempt.”

The tribunal set out in its decision the following passages from the MEG:

“If you’re unable to get vaccinated against COVID-19 for medical reasons

Some individuals are unable to be vaccinated and also, in some cases, tested for medical reasons. You can apply for proof that you have a medical reason why you should not be vaccinated or why you should not be vaccinated and tested.

If you get this proof of medical exemption you’ll be able to use the NHS COVID Pass wherever you need to prove your COVID-19 status within England.

Until 24 December 2021, you can self-certify that you’re medically exempt if you work or volunteer in a care home (https://www.gov.uk/government/publications/temporary-medical-exemptions-for-covid-19-vaccination-of-people-working-or-deployed-in-care-homes).

…

From 25 December, if you’re unable to get vaccinated, you’ll have to use the NHS COVID Pass in the same way that people who are fully vaccinated use it.

…

The possible reasons for exemptions are limited. Examples that might be reasons for a medical exemption are:

 people receiving end of life care where vaccination is not in the person’s best interests

 people with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments

 a person with severe allergies to all currently available vaccines

 those who have had an adverse reaction to the first dose (for example, myocarditis)

Other medical conditions could also allow you to get a medical exemption.

Short-term exemptions will also be available for those with short-term medical conditions and as an option that some pregnant women may choose to take.

…

The NHS COVID Pass for people who are medically exempt from vaccinations

All exemptions will be confirmed by your doctor, specialist clinician or midwife. If approved, your NHS COVID Pass can then be used to prove your status.

The domestic NHS COVID Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. The pass will not show that you have a medical exemption.”

I note that the OG included references to what would be the position up to, or after, 31 March 2022. But, in the event, regulation 12(3)(b) was repealed altogether with effect on 15 March 2022. I note also that the MEG referred to reliance on self-certification being an option until 24 December 2021, but the OG referred to the fact that this was, in the event, extended.

Peters and Findlay (1) and Fairburn (2) v Secretary of State for Social Care and Joint Committee for Vaccination and Immunisation [2021] EWHC 3182 (Admin) was a decision of Whipple J, as she then was, at an oral hearing (permission having been initially refused on paper) refusing the claimants in that case permission to seek a judicial review of regulation 12(3)(b). The tribunal referred to this decision as Fairburn, as shall I.

Section 4 of the 2010 Act lists protected characteristics, including age, disability, religion or belief, and sex. Further provisions are contained, in relation to age in section 5, in relation to disability in section 6, in relation to religion or belief in section 10, and in relation to sex in section 11.

Section 19 concerns indirect discrimination. Sections 19(1) and (2) provide:

“(1)

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2)

For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a)

A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)

it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)

it puts, or would put, B at that disadvantage, and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.”

Pursuant to section 19(3) the relevant protected characteristics include age, disability, religion or belief and sex.

Part 3 concerns services and public functions. It includes provisions, within section 29, prohibiting discrimination in various ways by providers of services to the public or a section of the public and, as part of section 29(6), that a person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination. Part V concerns work. It includes, in section 39, provision that an employer must not discriminate against an employee by dismissing them or subjecting them to any other detriment.

Sections 111 and 112 provide as follows:

“111 Instructing, causing or inducing contraventions

(1)

A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2)

A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3)

A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4)

For the purposes of subsection (3), inducement may be direct or indirect.

(5)

Proceedings for a contravention of this section may be brought—

(a)

by B, if B is subjected to a detriment as a result of A's conduct;

(b)

by C, if C is subjected to a detriment as a result of A's conduct;

(c)

by the Commission.

(6)For the purposes of subsection (5), it does not matter whether—

(a)

the basic contravention occurs;

(b)

any other proceedings are, or may be, brought in relation to A's conduct.

(7)

This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.

(8)

A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it.

(9)

For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating—

(a)

in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B;

(b)

in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C.

112 Aiding contraventions

(1)

A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention).

(2)

It is not a contravention of subsection (1) if—

(a)

A relies on a statement by B that the act for which the help is given does not contravene this Act, and

(b)

it is reasonable for A to do so.

(3)

B commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (2)(a) which is false or misleading in a material respect.

(4)

A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5)

For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating to the provision of this Act to which the basic contravention relates.

(6)

The reference in subsection (1) to a basic contravention does not include a reference to disability discrimination in contravention of Chapter 1 of Part 6 (schools).”

Schedule 3 paragraph 1(1) provides that section 29 does not apply to the exercise of a function of Parliament or a function exercisable in connection with proceedings in Parliament; paragraph 2(3) provides that it does not apply to preparing, making, confirming, approving or considering an instrument which is made under an enactment by a Minister of the Crown; and paragraph 2(6) provides that it does not apply to anything done “in connection with the imposition of a requirement or condition which comes within Schedule 22”.

Schedule 22 paragraph 1(1) includes provision that a person (P) does not contravene part V, so far as relating to age, disability or religion or belief “if P does anything P must do pursuant to” a requirement of an enactment. Section 212 defines “enactment” as including an enactment contained in an Act of Parliament or subordinate legislation.

The applicable rules of procedure at the time of this decision were the Employment Tribunals Rules of Procedure 2013. Rule 37 included provision that a tribunal may strike out all or part of a claim on the grounds that is has no reasonable prospect of success.

The tribunal identified that around 127 claims formed part of a multiple that had been joined together. It referred to the SoS and DHSC as the Government respondents and the CQC and Mr Trenholm as the CQC respondents. At an earlier case-management hearing before EJ Maidment the present PH had been listed to (among other things) consider the application of all four of them for the claims against them to be struck out or alternatively made the subject of deposit orders. These claims had been identified as being “that, in introducing the Guidance and using the Guidance as the basis for CQC enforcement, R2-5 induced, caused, instructed and/or aided the first respondents’ indirect discrimination of the claimants pursuant to Sections 111 and 112… .”

I interpose that I was provided with a copy of a bundle that was before the tribunal, consisting of the pleadings in respect of the claims of 10 of the claimants. They were six sample claimants put forward on the claimants’ behalf plus four out of six proposed reserves. For each of the claimants the particulars of claim were based on a template settled by Christopher Milsom of counsel. At the PH in the tribunal they were represented by their solicitor, Mr Hyland. Tom Brown of counsel settled the pleadings of the Government and CQC respondents, and appeared for them at the tribunal hearing.

The tribunal noted that the issues in relation to these respondents were to be considered on the assumption that each of the claimants had the protected characteristic or characteristics on which they relied and that they had each been indirectly discriminated against, as claimed, by their former employers. That was because, when considering strike out, it was necessary to take a claim at its highest. I interpose that, as noted in the minute of the EJ Maidment PH, the PCPs said to have been applied by each of the former employers were, firstly, “the requirement of all staff to be vaccinated by 11 November 2021”; and, secondly, “[d]ismissal of those who were not vaccinated and failed to satisfy the exemption requirements of the JCVI and/or the Guidance and/or the NHS App.” In particular, it was claimed that employers had, in fact, followed the Guidance.

The tribunal noted at [26] that EJ Maidment had identified seven particular issues. I interpose that it is clear that these issues fell under the umbrella of consideration of whether the claims against the non-employer respondents should be struck out as having no reasonable prospect of success:

“26.1.

There is no pleaded claim as to why and how the 4th and 5th respondents might be liable for any act of indirect discrimination by the care home respondents.

26.2.

Is the effect of paragraph 1 of Schedule 22 of the Equality Act 2010 to exempt the treatment complained about in relation to the protected characteristics of age, sex, disability and belief, on the grounds that the employers were doing anything they must do pursuant to the requirement of an enactment, namely Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014/2936 as amended by the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021?

26.3.

Was the effect of Regulation 12(3)(b)(ii) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014/2936 (as amended) that the mere fact of a lack of consent to vaccination constituted “clinical reasons [a person] should not be vaccinated with any authorised vaccine [against the coronavirus]”?

26.4.

Was the relationship between the employers and the Department of Health and Social Care (“DHSC”) and/or Secretary of State such that they were in a position to commit a basic contravention in relation to the employer for the purposes of 111(7) of the Equality Act?

26.5.

Do the claimants prove facts from which the tribunal could conclude that, in publishing operational Guidance on the coronavirus vaccination of people working or deployed in care homes, the DHSC and/or the Secretary of State induced, caused, instructed and/or knowingly aided the indirect discrimination of the claimants in relation to any applicable protected characteristic?

26.6.

Was the CQC directed by the DHSC and/or Secretary of State to assess compliance by reference to the Guidance rather than the Regulations?

26.7.

If so, how did this constitute inducing, causing, instructing and/or the knowing aiding of indirect discrimination of the claimants?”

After a self-direction as to the law, the tribunal discussed each of the seven issues in turn.

In relation to issue 1 the tribunal identified various anomalies and inconsistencies in the way some of the individual claims were pleaded. Directing itself in accordance with Chandhok v Tirkey [2015 ICR 527 (EAT) it considered that the claimants’ pleadings did not set out the essence of their cases against the CQC and Mr Trenholm. Further particulars had been submitted around ten months after the original claims, but these went beyond what had been ordered by EJ Maidment. Mr Hyland confirmed that he was not applying to amend to introduce other elements of these particulars relating to these two respondents. The claims against them were struck out.

In relation to issue 2 the tribunal set out the relevant provisions of the 2010 Act, the 2008 Act, and the 2014 and 2021 Regulations. It described Mr Brown’s submission that the effect of schedule 22 paragraph 1 of the 2010 Act was that the former employers could not be liable for indirect discrimination on the basis of age, disability, religion or belief, done pursuant to a requirement of, or imposed on them by, regulation 12(3)(b) (which is “an enactment”). Hence, he argued, the Government and CQC respondents could not be liable in respect of any such conduct.

The tribunal continued:

“Mr Hyland did not seek to disagree expressly with Mr Brown’s submission. However, he stated that any indirect discrimination took place because of the First Respondents’ reliance on the Operational Guidance, rather than the 2014 Regulations. Mr Hyland said that the Operational Guidance narrowed the meaning of ‘clinical reasons’ under Regulation 12 of the 2014 Regulations. He stated that the Operational Guidance was not part of the 2014 Regulations (or part of any requirement or condition imposed by virtue of the 2014 Regulations).”

The tribunal accepted Mr Brown’s submission, that the Government and CQC respondents could not be liable in respect of any conduct of the first respondents to which schedule 22 applied. However, that did not conclude the matter, because schedule 22 did not apply to complaints of indirect sex discrimination, and because of Mr Hyland’s argument that the OG was not a requirement or condition imposed by the 2014 or 2021 Regulations. The tribunal indicated that it would therefore move on to consider the provisions of regulation 12(3)(b), the OG and the MEG.

In the next section the tribunal then considered issue 3. I note that EJ Maidment had identified that as specifically being whether the effect of regulation 12(3)(b)(ii) was that “the mere fact of lack of consent to vaccination” constituted “clinical reasons”. But, in view of how Mr Hyland put his case, the tribunal also considered in this section more generally whether the OG and the MEG had, as Mr Hyland put it, “narrowed the meaning” of “clinical reasons” in regulation 12.

In the course of this section the tribunal set out passages from the Explanatory Memorandum to the 2021 Regulations (which referred to the OG), the text of regulation 12(3)(b), the passages from the OG and the MEG that I have already reproduced, and an extract from the statement made to the House of Commons by the then Minister of State for Care when introducing the 2021 Regulations. The tribunal noted that the regulations did not define “clinical reasons” within regulation 12(3)(b).

After summarising the parties’ main arguments the tribunal set out a number of conclusions. These were, in summary, as follows.

As was concluded in Fairburn, regulation 12(3)(b) did not impose a requirement on any individual to be vaccinated. They could decide. If they decided not to be vaccinated, they could provide the registered person with evidence that they had “clinical reasons” not be vaccinated; but, if they did not do so, the registered person was required to prevent them from entering the care home.

Next, the evidence provided had to be “satisfactory” for the registered person’s purposes. Each registered person had to take their own decisions regarding the process of checking to be followed for their care home, the evidence that they would deem satisfactory and the information that they would need to provide to the CQC for monitoring purposes.

Next: “clinical” is a synonym for “medical”, and the ordinary meaning of “clinical reasons” is “medical reasons”. This was the meaning of “clinical reasons” in regulation 12(3)(b).

The tribunal did not accept Mr Hyland’s submission that the OG and/or the MEG were “not in accordance with the law.” Neither were within the scope of regulation 21 of the 2014 Regulations, which referred to certain other guidance issued by the CQC, to which a registered person “must have regard”. But there was nothing to prevent the Government from issuing the OG and the MEG. They were not a “relevant requirement or condition” imposed by the 2014 Regulations. They were “non-binding guidance” to assist registered persons who were required to comply with regulation 12(3)(b). The tribunal also did not accept the submission that the OG and/or the MEG breached the claimants’ human rights. It concluded that Whipple J’s reasons for rejecting such arguments in Fairburn, in relation to regulation 12(3)(b) itself, applied similarly to the Guidance.

The tribunal concluded [75.1] that “clinical reasons” did not include a situation where an individual “refused their consent to be vaccinated, for example on the basis of their personal concerns regarding the safety or efficacy of the vaccine, a religious belief or a belief in bodily autonomy.” In any event the OG and the MEG did not “expand” the meaning of “clinical reasons” beyond that which was set out in the regulation 12(3)(b) requirement. The Explanatory Memorandum and the Statement of the Minister of State provided evidence regarding Parliament’s intention when referring to “clinical reasons”, that are “broadly consistent” with the MEG and the OG [75.3].

I interpose that both counsel agreed, as do I, that in saying that the OG and the MEG did not “expand” the meaning of “clinical reasons”, what the tribunal was plainly in substance conveying was a rejection of the claimants’ case that the Guidance adopted a narrow or restrictive approach to the concept, by comparison with the scope of the unvarnished concept as used in regulation 12(3)(b).

The tribunal concluded [75.4] that paragraph 1 of schedule 22 exempted the first respondents from any liability in respect of any discrimination in relation to the characteristics of disability or religion or belief that may otherwise have taken place. The Government and CQC respondents could not be liable under sections 111 or 112 in relation to such allegations of discrimination. The human rights arguments were regarded as analogous to those raised in Fairburn and were rejected [75.5]. The complaints relying on sections 111 and 112 by reference to disability or religion or belief therefore had no reasonable prospect of success and were struck out [75.6].

The tribunal turned to issues 4 and 5, noting that schedule 22 did not cover sex discrimination complaints under part V (employment) and that, if it was wrong on issue 3, then its conclusions on issues 4 and 5 would also apply to the complaints relying upon disability and religion or belief.

After setting out the relevant text of section 111, the tribunal drew from NHS Trust Development Authority v Saiger [2018] ICR 297 (EAT) at [118] the propositions that (a) for there to be liability under section 111 there must be evidence of actual instruction, causation or inducement or attempt to cause or induce; and (b) the conclusion that someone was in a position to do those things, was a party to a discussion, or played a material part in a decision, was not enough.

What section 111(7) meant, said the tribunal, was that the SoS and/or the DHSC must be in a position to commit some form of discrimination under parts 3 – 7 or other specified provisions of the 2010 Act against the former employers. The tribunal continued that, when asked to say what “basic contravention” they were in a position to commit against the first respondents Mr Hyland was “unable to do so”. The tribunal set out further the arguments that were advanced by him, and why they were rejected. Mr Brown’s position was that there could be no basic contravention on the part of the SoS or DHSC, because the provisions of schedule 3 and schedule 22 between them precluded it.

The tribunal reiterated its rejection of the human rights arguments. It was not possible for it to disapply section 111(7). Mr Hyland could not identify what basic contravention the SoS or DHSC were in a position to commit. In the absence of that the complaints under section 111 against them had no reasonable prospect of success and were struck out [93].

In relation to section 112 the tribunal considered the guidance in the EHRC’s Employment Statutory Code of Practice (2011), Mr Brown’s arguments that “knowing help” under section 112 could not include conduct within scope of section 111, and that schedule 22 and schedule 3 both applied, and Mr Hyland’s reliance on CRE v Imperial Society of Teachers of Dancing [1983] ICR 473. It also noted the recent decision of the Court of Appeal in Arvunescu v Quick Release (Automotive) Limited [2022] EWCA Civ 1600; [2023] ICR 271 upholding the EAT in that case.

The tribunal’s conclusions on issues 4 and 5 in relation to section 112 were as follows:

“102.

I concluded that the claimants had not provided evidence from which the Tribunal could conclude that the DHSC and/or the Secretary of State had ‘knowingly helped’ the First Respondents to indirectly discriminate against the claimants:

102.1.

the Secretary of State and the DHSC were acting on behalf of the government in producing the 2021 Regulations, which introduced the Regulation 12(3)(b) Requirement into the 2014 Regulations. Any acts or omissions by the First Respondents as a result of Regulation 12(3)(b) are exempt from the discrimination provisions in the EQA because of Schedules 3 and 22 of the EQA. Any actions or omissions of the First Respondents which fell outside of the requirements of Regulation 12(3) were the responsibility of the registered persons working for the First Respondents, rather than the other respondents to this claim;

102.2.

the word ‘help’ should be given its ordinary meaning, as set out in the EHRC Code. The provisions of s112 are separate to those of s111, for the reasons submitted by Mr Brown. The definition of ‘knowingly help’ should not encompass instructing, causing or inducing contraventions of the EQA as these are matters covered by s111 of the EQA;

102.3.

the examples set out above in relation to ‘knowingly help’ involve individuals who provided direct assistance to the persons carrying out the discrimination. The definition of ‘knowingly help’ cannot be extended to encompass the issuing of non-binding guidance, the intention of which was to assist the registered persons with their statutory duties. The Operational Guidance reflects this by stating:

‘This section aims to give advice to registered persons on the implementation of the regulations. When deciding how to implement the regulations, the registered person must also refer to the code of practice on the prevention and control of infections, which we are currently updating and will publish as soon as possible.

Checking vaccination or exemption status

…

It will be up to you, the registered person (or those acting on your behalf), to identify the most appropriate procedures to check the vaccination and exemption status of individuals. You may want to consider the UKHSA’s advice under the previous section ‘Other temporary methods of medical exemption’ when doing so. …’

103.

The claimants’ complaints under s112 EQA against the Second and Third Respondents have no reasonable prospects of success and are struck out.”

In relation to issues 6 and 7 the tribunal noted that it had already struck out the claims against the CQC and Mr Trenholm in light of its conclusions under issue 1; but it also set out in this section a number of further reasons why it concluded that the claims against the CQC and Mr Trenholm had no reasonable prospect of success.

I pause to note that, in discussing schedule 22 of the 2010 Act the tribunal sometimes referred only to disability and religion or belief. But, as the tribunal itself set out, that provision also applies to part V complaints relying upon age, in respect of something done pursuant to a “requirement of an enactment”. Mr Milsom, in the course of argument, focussed on features of some of the particular claims that had been brought by reference to disability, religion or belief and/or sex. He noted that a few of the claimants also relied upon age, but said (and I agree) that nothing turns on that.

There are four grounds of appeal.

The heading of this ground is that “The ET Failed to Apply the Principles of Strike-Out Applications.” Specifically the ground cites Anyanwu v South Bank Student Union [2001] UKHL 14; [2001] ICR 391, a case which, it notes, concerned one of the predecessors of section 112.

As Mr Milsom acknowledged, as to its substantive particulars, there is overlap between this ground and aspects of the substantive challenges raised by the remaining grounds. However, some aspects of this ground can be addressed before we turn our attention to each of the other grounds. As to its general theme, in an oft-cited passage in Anyanwu Lord Steyn said at [24]:

“Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”

In another well-known passage Lord Hope of Craighead said, at [37]:

“I should like first to say that, if I had reached the view that nothing that the university is alleged to have done could as a matter of ordinary language be said to have aided the student union to dismiss the appellants, I would not have been in favour of allowing the appeal. I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence. This was the point which Pill LJ was making in his dissenting judgment in the Court of Appeal [2000] ICR 221 when he said, at p 232, that the acts complained of and the alleged conduct of the university and the student union which preceded them are so entangled upon the facts alleged that it would not be appropriate to separate them at this stage.”

It should be noted also, however, that Lord Hope also said, at [39]:

“Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to taken up by having to hear evidence in cases that are bound to fail.”

Mr Milsom referred also to the emphasis given in Balls v Downham Market High School and College [2011] IRLR 217 (EAT) to the test being whether a claim has “no” reasonable prospect of success, not merely whether it is likely to succeed or fail; and to the fact that a strike-out deprives a party of the chance to have their case examined and adjudicated at a full trial. So Article 6 rights are effectively engaged; and it would be disproportionate and wrong for a tribunal to strike out a claim, without considering the alternative options short of doing so.

The particular authorities relied upon by Mr Milsom in support of that last point concerned the power to strike out by reason of a party’s conduct of the litigation. Where a party’s case is found to have no reasonable prospect of success, particularly where they are a litigant in person, it may sometimes be incumbent on the tribunal to consider whether the weakness in their case could be addressed by an amendment or further particulars. But Mr Milsom did not contend that this was such a case. He did argue that the tribunal could, instead of striking out, have made deposit orders. But, provided that it did not err in concluding that the claims against these respondents had no reasonable prospect of success, I do not consider that it erred in not instead making deposit orders.

True it is that the tribunal did not, in its self-direction, refer to Anyanwu or any other authority, nor the relevant principles, relating to this type of strike-out. But, as the ground acknowledges, these principles are familiar territory. However, the ground contends that the tribunal erred, in substance, by failing to apply what it calls Anyanwu principles, in the following ways.

First, it is said that the tribunal erred in its conclusions as regards schedule 22 paragraph 1 of the 2010 Act. It is contended that its reliance upon what I will call the schedule 22 exclusion meant that all of the complaints against the former employers were struck out insofar as they relied upon a protected characteristic other than sex. This is said to have been wrong, because of the factual sensitivities of the individual complaints, and the serious consequences of dismissal for the claimants.

However, there was no application before the tribunal at this PH to strike out any of the complaints against the first respondents, nor did it do so in its judgment. Further, the tribunal set out expressly at [23] – [25] that, for the purposes of considering the applications to strike out the complaints against the Government and CQC respondents, it was proceeding on the assumption that the claimants would, at any final hearing, succeed in their complaints of indirect discrimination against the first respondents by reference to the protected characteristics on which they each relied.

This ground contends that the tribunal nevertheless concluded at [61] that the indirect-discrimination complaints against the first respondents (save in respect of sex) had no reasonable prospect of success because the schedule 22 exemption bit. However, the tribunal concluded at [62], that the Government and CQC respondents could not be liable under sections 111 or 112 “if” the first respondent were exempt under schedule 22. That conclusion did not preclude a trial tribunal from concluding, on the particular facts of the case of a given claimant, that their dismissal was not something that their employer must do pursuant to the requirements of regulation 12(3)(b).

This ground also asserts that, even where the strike-out application was determined on a question of statutory construction, the tribunal failed to address the correct question, being whether the claimants’ legal arguments enjoyed better than no reasonable prospect of success. Mr Milsom contended in particular that the scope of sections 111 and 112 is a difficult and uncertain area, and that the tribunal should have left the issues of law to a full hearing. He cited Campbell v Frisbee [2002] EWCA Civ 1374; [2003] ICR 141 (CA) and Twist DX Ltd v Armes UKEAT/0030/20.

In Campbell the claimant in a High Court action was successful in an application for summary judgment on part of her claim before the Deputy Master. On appeal the High Court judge upheld that decision, including a holding that on two particular issues of law the defendant had no reasonable prospect of success. On further appeal the Court of Appeal, speaking through Lord Phillips MR, concluded at [22] that, in relation to one of these issues of law, while it was unlikely that the defendant would prevail, it could not be said that she had no reasonable prospect of success on the issue. It concluded: “This issue of law was not one that was suitable for summary determination under part 24 CPR.” In relation to the second issue, where again the judge held that there was no realistic prospect of the defendant succeeding, her counsel argued to the contrary and that it was in fact a mixed issue of fact and law; again the Court of Appeal considered the point to be arguable.

In Twist DX Ltd, Linden J, as part of a summary of the principles emerging from the authorities relating to applications to strike out on the basis of no reasonable prospect of success, included, at [43(e)], the following: “The court or tribunal generally should not seek to resolve novel issues of law which may not arise on the facts, particularly in the context of a developing area of the law: see, for example, Campbell v Frisbee [2003] ICR 141 CA.”

I conclude that, when considering a strike-out application of this sort in a case where there is a dispute as to the law, as well as of fact, the tribunal needs to proceed with circumspection. First, what is contended to be an issue of law may, in practice, be one of mixed law and fact, so that the legal issue cannot be fairly separated out and resolved until all the disputes of fact have been determined. Secondly, the tribunal should be wary if invited to hold that a party has no reasonable prospect of success on the point of law, if it is effectively being asked to assess the strength of an argument of law, without the point being fully argued or definitively determined. However, provided that these cautions are borne in mind, there is no reason why the tribunal may not, on such an application, determine a disputed point of law, provided that it is fair to do so, on the basis that there has been an opportunity fully to argue it, as part of its consideration of whether the underlying complaint, taken at its highest, has no reasonable prospect of success.

I do not think that the present tribunal was wrong to conclude that if in a given case the dismissal was found to be something which the employer must do pursuant to regulation 12(3)(b), then the complaint of indirect discrimination against that employer (save in relation to sex) would, as a matter of law, be bound to fail; and, if so, it would be bound to follow that any complaint against the other respondents in respect of that dismissal, under section 111 or section 112, would also be bound to fail, because these sections provide that such a complaint can only succeed if the conduct said to have been instructed, caused, induced or knowingly helped was itself a “basic contravention”.

An argument of this type (relating to a point of law) is also raised, specifically in relation to the tribunal’s approach to “knowingly help” within section 112(1) Equality Act 2010; and I will consider that further within the context of ground 4 in so far as it relates to that aspect of the decision.

Next, this ground also contends that the tribunal erred in treating the conclusions in Fairburn, that Convention rights arguments did not provide an arguable basis for judicial review, as dispositive of the justification defence to a complaint of indirect discrimination. Whether that defence was made out in a particular case would, it is contended, require close scrutiny at trial.

I agree with Mr Milsom that authorities such as Akerman-Livingstone v Aster Communities Limited [2015] UKSC 15; [2015] 1 AC 1399 show that the conclusion that conduct is not a disproportionate interference with Convention rights does not necessarily mean that it must also be proportionate for the purposes of the justification defence to a complaint of indirect discrimination. But this line of challenge to the tribunal’s decision faces a number of difficulties.

Firstly, as discussed by the tribunal at [31] to [39], Whipple J in Fairburn did consider arguments that regulation 12(3)(b) not merely interfered with care workers’ Article 8 rights, but also that it had a discriminatory effect, relying on Article 14, at least with respect to some protected characteristics. But she concluded that the regulation did not require care workers to undergo vaccination and that any such interference or discriminatory effect would be outweighed, in the context of the pandemic, by the Article 2 rights of care home residents. The tribunal considered that such reasoning applied with equal force in relation to the present discrimination claims. Secondly, as can be seen at [74.1] and [74.10], the principal reliance placed by the tribunal on this aspect of the reasoning in Fairburn was in relation to question 3 – being whether a mere lack of consent should be regarded a clinical reason; but that line of argument is no longer maintained on appeal.

Further, once again this line of attack faces the difficulty that the tribunal did not hold that (whether because the claimants could not arguably successfully rely on Convention rights, or otherwise) there was no reasonable prospect of individual employers failing in the justification defence at trial. Rather, it proceeded expressly on the assumption that the requirements of section 19 (including lack of justification) would be satisfied, but concluded that, by virtue of the schedule 22 exemption, such a complaint (other than in relation to sex) would nevertheless fail in a case where the dismissal was found to have been something that the employer must do to comply with regulation 12(3)(b). Mr Milsom confirmed that he did not seek to contend that Convention rights considerations meant that the tribunal could, or should, have disapplied the schedule 22 exemption altogether.

True it is that that conclusion about the potential implications of schedule 22 for the underlying claims, as far as it goes, has at least potential repercussions for (at least some of) the complaints against the first respondents. But the claimants cannot complain of the tribunal having addressed this issue at this PH. It was clearly identified by EJ Maidment as an issue that would be on the agenda for the PH, and was duly argued out at it. For good order I note that the various first respondents were, for their part, on notice of this, and could have sought to be heard at the PH (and indeed they were also given that same opportunity in respect of this hearing in the EAT).

The tribunal did, however, at the conclusion of its consideration of issue 3, at [75.6], hold that the complaints against the non-employer respondents should be struck out. The grounds of appeal however raise further contentions that the tribunal erred in its approach to the potential for the schedule 22 exemption to be found, factually, to apply to the facts of a given case, such that it was wrong to conclude that schedule 22 precluded the Government respondents from being held liable for any dismissal that may have amounted to an act of direct discrimination. These challenges are advanced by ground 2 and I will consider them when I turn to it.

The appeal also challenges, as it must in order to disturb the judgment, the tribunal’s later conclusions that the claims against the Government respondents should be struck out because there was no reasonable prospect of liability being established under section 111 [93] or section 112 [103]. Those challenges are the subjects of grounds 3 and 4, to which we will also come.

There is also one further strand to ground 1, which is that, in the opening words of [102] the tribunal erred by relying on the proposition that the claimants had not provided “evidence” from which it could be concluded that the Government respondents had “knowingly helped” the first respondents to indirectly discriminate. That formed part of the conclusions in relation to the issues relating to section 112 of the 2010 Act; and this aspect of the challenge can most conveniently be considered when I come to ground 4, which concerns the tribunal’s approach to that section.

The headline of this ground is that “The EAT Erred in its Approach to para.1 Sch 22.” The substantive ground is set out at paragraphs [13] to [19] of the grounds of appeal. It contends that the tribunal erred by concluding that the schedule 22 exemption precluded the discrimination complaints (save in relation to sex) from proceeding as against all respondents, because it failed to recognise the limits of the potential application of the schedule 22 exemption in two particular respects.

By way of general underpinning, it is said that, as the schedule 22 exemption applies only to a person doing anything that they “must do pursuant to a requirement” of an enactment, as a matter of ordinary language its scope is limited. That is reinforced, it is said, by the fact that it provides an exemption to liability for discrimination, and so, it is argued, should be construed narrowly in accordance with section 3 Human Rights Act 1998 and Articles 8 and 14 ECHR.

Mr Milsom cited two authorities in particular. Hampson v Department of Education [1990] UKHL 15; [1991] 1 AC 171 held that the similarly-worded exemption in the Race Relations Act 1976 section 41(1)(b) could only apply in respect of requirements of the instrument concerned, and not to anything merely done in exercise of powers conferred by it. In Heron v Sefton MBC, UKEAT/0556/12 it was not sufficient to engage the exemption that regulations “provided for” the approach to the calculation of a redundancy payment that was said to be age-discriminatory, as they did not require that approach to be taken by the claimant’s employer.

This ground then contends that the tribunal erred in two specific ways.

First, it is said to have erred by failing to conclude that the approach of the Guidance to the concept of clinical reasons was narrower than it should have been. The ground contends that the tribunal correctly noted that regulation 12(3)(b) did not define “clinical reasons”. It also correctly concluded that the Guidance was not a “relevant requirement or condition” imposed by the 2014 Regulations. But it then, in error, failed to conclude that the Guidance could have afforded greater discretion, both to GPs certifying exemptions and to registered managers, than it did.

Specifically, argued Mr Milsom, the “parameters of ‘clinical reasons’ could have been set so as to accommodate a care worker’s protected characteristics or rights under Articles 8 and 14 where exemption is approved by a GP.” It was not necessary to “confine the scope of ‘clinical reasons’ to the extent seen in the non-binding Guidance.” The tribunal is also said to have erred in concluding that “broad consistency” was sufficient to fall within the schedule 22 exemption.

In oral submissions Mr Milsom made clear that he did not take issue, as such, with the tribunal’s conclusion that “clinical reasons” here means “medical reasons”. Nor, as I have noted, was it contended upon appeal that the tribunal should have concluded that an unwillingness or refusal to be vaccinated should have been regarded as “medical reasons” in and of it itself, without more.

However, Mr Milsom contended that the Guidance unduly confined the scope of clinical reasons in a number of ways. In particular the MEG described the “possible reasons for exemptions” as “limited” and the specific examples which it gave were narrow, such as “receiving end of life care” and “severe allergies to all currently available vaccines”. There were, he argued, many other clinical – medical – reasons which would fall outside of those strictures. The Guidance should have afforded greater discretion in this regard both to GPs certifying exemptions and to registered managers.

Further the Guidance could, it is said, have indicated that “genuine or reasonable concerns” held either by the care worker or the GP might constitute valid reasons for an exemption, such as concerns about a possible deleterious impact of the vaccine on a pre-existing disability, on fertility, on a breastfeeding mother, or on mental health in cases where vaccination would represent on incursion on bodily integrity contrary to the care worker’s beliefs. These examples were, he said, all in point in relation to the way at least some of the claimants advanced their particular claims.

My conclusions on this strand of the appeal are as follows.

First, regulation 12(3)(b) did not merely permit a manager to exclude a care worker who had not provided evidence that satisfied the manager either that they had been vaccinated or that, for clinical reasons, they should not be. It provided that the manger “must secure” that such a worker “does not enter the premises”, on pain – potentially – of criminal sanction. This language was plainly mandatory. The tribunal did not therefore err by failing to conclude that the Guidance was wrong to fail to cater, or allow room, for a manager, a carer or a clinician to take a more liberal, flexible or subjective approach to what might be regarded as sufficient to amount to evidence that an individual should not be vaccinated, than regulation 12(3)(b)(ii) itself stipulated.

Turning, then, to the language of regulation 12 itself, the condition for regulation 12(3)(b)(ii) to apply, was that “evidence” be provided which satisfied the manager that “for clinical reasons” the carer “should not” be vaccinated. The fact that “clinical reasons” for the purposes of regulation 12(3)(b) was not further defined does not mean that its meaning was at large. The tribunal had, as necessary, to decide what it meant, in the context of this particular provision.

Regulation 12(3)(b) referred to evidence that “satisfies A”, which introduced an element of subjectivity (from the point of view of the manager) in to the test. But no doubt a court or tribunal would construe that as meaning “reasonably satisfies”; and in any event the underlying thing of which managers needed to be satisfied was that, objectively, the individual “should” not be vaccinated for “clinical reasons”. That was in keeping with what the tribunal properly discerned, from the materials which it considered, was the purpose of the 2021 Regulations, in introducing regulation 12(3)(b), being to protect the health of vulnerable care home residents in the context of the Covid-19 pandemic.

Further, what the regulation did not provide, was for the carer’s subjective belief to be determinative. As I have noted, the claimants no longer contended on appeal that a mere wish not be vaccinated would be sufficient. But nor did the regulation refer to evidence that satisfied the manager that the individual strongly or sincerely believed that they should not be vaccinated for clinical reasons. Nor did it refer, directly or indirectly, to evidence that satisfied the manager that the individual was actuated by a belief that did, or might, amount to a protected belief within the meaning of section 10 of the 2010 Act, or a manifestation of a religious faith within the scope of that section. Nor did it refer to evidence satisfying the manager that the individual had a disability, within the meaning of section 6. None of these were, or were part of, the test laid down by regulation 12(3)(b).

Pausing there, two points should be stressed. First, neither the tribunal, nor indeed the EAT in determining this appeal was, or is, concerned with arguments about what width of exemption the law should have accommodated; but solely with the correction interpretation of what regulation 12(3)(b) in fact provided. Secondly, the fact that neither being actuated by a religious or philosophical belief, nor having a disability was necessarily sufficient for the purposes of the regulation does not mean that, in a particular case, such an individual might not be able to produce evidence of a clinical reason. But the matter would fall to be judged on the particular circumstances of the case.

I conclude that the present tribunal was therefore not wrong to say, as it did, at [75.1], that “clinical reasons” meant “medical reasons”, nor wrong to say that such reasons did not include a situation where an individual refused their consent to be vaccinated on the basis of “personal concerns” regarding the safety or efficacy of the vaccine or a religious belief or a belief in bodily autonomy. Nor was it wrong not to conclude that any person relying on any disability should be treated, for the purpose of regulation 12(3)(b), as having produced evidence of clinical reasons.

The relevance of these points, relating to the scope and meaning of regulation 12(3)(b), is that a correct approach to the meaning of the regulation is a necessary precursor to considering the arguments about whether the Guidance took a narrower approach than did the regulation. I turn then to consider the particular arguments about the content of the Guidance.

The OG was issued specifically in relation to the introduction of regulation 12(3). As set out by the tribunal, it began by stating that vaccination was for some people “not appropriate due to clinical reasons”. I do not think that that wording was more stringent than the wording of regulation 12(3)(b)(ii): “for clinical reasons B should not be vaccinated”. The OG also referred to both the options of applying for medical exemption and self-certification (which, in the event, was extended).

The OG also stated in terms that it aimed to “give advice” on the implementation of “the regulations” (that is, the changes introduced by the 2021 Regulations). In referring to “medical exemption” and “exemption status” it was not taking a different approach than was indicated by the wording of regulation 12(3)(b)(ii). The section of the OG Guidance for registered persons, headed “Checking vaccination or exemption status” stated that it would be “up to you, the registered person” to identify “the most appropriate procedures” to check exemption status of individuals and you “may” want to consider the UKHSA’s advice on other temporary methods of medical exemption.

All of that was in keeping with the fact that the requirement of the regulation was for the manager concerned to be “satisfied”; and that, even construing that as a mixed subjective and objective test, there would be room, pragmatically, for different managers reasonably to take different views as to what was sufficient to satisfy them in the given case. But, as the underlying test turned on whether there was evidence of “clinical reasons”, it was also in keeping with that to suggest medical sources that might assist a manager to make that judgment; and nowhere did the OG suggest that the evidence presented in the given case must necessarily be of reasons falling within a closed list of categories or types. The same points apply to the section concerning guidance for staff.

The main fire of the claims, and this part of this ground, was directed at passages in the MEG, which was specifically cross-referred to in the OG (although it was of wider application). Mr Milsom criticised the MEG, first, for stating that some individuals are “unable” to be vaccinated for medical reasons; but, given that it did refer to “medical reasons”, that appears to me to be a fair synonym for “should not” be vaccinated for “clinical reasons”. On a natural reading, in this context, “unable” embraced any case where vaccination was, for a clinical reason, contra-indicated.

Next, the MEG is criticised for saying that possible reasons for exemptions are “limited” and for what is said to be the narrowness of the particular examples that are given. However, I do not think that it was wrong, or misleading, for the MEG to say that the “possible reasons for exemptions” were limited, as they were indeed limited to reasons that would count as medical exemptions. The specific examples that were given were also stated, in terms, to be just that – examples. They were all examples of medical exemptions, and also varied in kind – circumstances of end-of-life care, autism or learning disabilities, severe allergies, and adverse physical reaction.

The MEG also, importantly, stated that other “medical conditions” could allow you to get a medical exemption. They also referred to the possibility of short-term medical conditions giving rise to exemption and to short-term exemptions possibly extending to pregnant women. Reference was also made to the NHS Covid Pass for people who were medically exempt, noting that exemptions “will be confirmed by your doctor, specialist clinician or midwife.” These passages conveyed, to use lawyers’ language, that the giving of particular examples was without limitation to the generality of the concept, and the variety of conditions that might fall under its umbrella.

Mr Milsom took issue with the reference to use of a MAT B1 certificate being possible only up to sixteen weeks following birth. This failed to recognise, he submitted, that a breastfeeding carer might have legitimate concerns about being vaccinated, and he noted that the Government’s own Equality Impact Assessment (EIA) referred to the lack of evidence in that regard. He also criticised the lack of any reference to the situation of someone who was trying to conceive. However, the context in which the Guidance referred to the MAT B1 was as a possible alternative form of evidence for use by a pregnant carer claiming a clinical reason. The fact that it contemplated that this could continue to be relied upon for sixteen weeks following birth does not mean that the Guidance implied that someone who was breastfeeding (however long after birth) would be precluded from producing evidence of a clinical reason, nor indeed that someone who was trying to conceive would be.

Once again, whether someone in either of those categories might have a clinical reason would depend on the facts of their particular case, just as it would in relation to a pregnant carer. The fact that the EIA recognised that carers in these categories might have particular concerns, or face other difficulties, so that the regulation might have a disparate impact on them as a group, did not mean that therefore the Guidance should have indicated that those in these categories fell to be regarded as generally having a clinical reason. It would, for reasons I have explained, have been wrong to do so.

I therefore do not agree that it was arguable that the MEG gave a narrow or skewed picture of the concept of medical exemption, or the range or variety of conditions that might support a medical exemption, such as might mislead the reader into thinking that the exemption under regulation 12(3)(b) was narrower than it in fact was. The Guidance did not anywhere in terms exclude any particular condition or particular group or category of conditions, still less any that should not have been excluded. I do not think it arguable that it in any way tied the hands of GPs or other clinicians. Leaving aside that it was only guidance, if a GP took it as their touchstone, I cannot see that it would lead them to conclude that anything in it precluded them, or steered them away, from certifying what they might regard as a medical reason why a given individual should not have a Covid vaccine.

I therefore do not agree that the Guidance set a “high threshold” or “strictures” that many clinical conditions would fall short of. It did not preclude, whether expressly or by implication, that a disability giving rise to a medical reason why an individual should not be vaccinated would count, whether physical or to do with mental health (such as a phobia or other clinical mental health condition), nor concerns that an individual should not be vaccinated related to any subject or context, be it fertility, breast-feeding or otherwise, if there might be some evidenced medical basis for the particular concern. It was also not wrong not to use examples, or the general yardstick, of “genuine” concerns on the part of the carer – because that was not the test that the regulation had adopted.

Finally, on this strand of the ground, it is contended that at [75.3] the tribunal erred by relying on the proposition that the MEG were “broadly consistent” with the regulations. However, what the tribunal said, was that the Explanatory Memorandum and the statement of the Minister of State provided evidence regarding Parliament’s intention, that was broadly consistent with the OG and the MEG. One would not expect such materials, which are different in kind, to be identical in drafting style and language. The tribunal properly regarded them as supporting its interpretation of “clinical reasons” in regulation 12(3)(b), and hence its conclusion as to whether the OG and the MEG took a narrower approach. Its use of the word “broadly” does not imply anything else, nor that it erred in considering whether the OG and MEG were materially out of kilter with regulation 12(3)(b).

The second strand of this ground contends that the tribunal erred in its conclusion with respect to the applicability of the schedule 22 exemption, by concluding that the dismissal of the individual claimant, was, in every case, a step that regulation 12(3)(b) meant that the employer “must” take. The regulation did not itself require employers to dismiss, but only to secure that a carer in respect of whom that regulation was not satisfied not enter the care home. In a given case there would potentially be other options available, such as suspension or redeployment to another role.

Once again, this strand of the argument faces two difficulties. The first is, to repeat, that the tribunal did not decide that, in every case, a trial tribunal would be bound to find that, in that case, the employer, in order to secure compliance with regulations 12(3)(b), had been left with no option but to dismiss. Rather, the premise from which it proceeded was that, if it was found in the given case that the employer’s conduct was something that it must do to comply with the regulation, then (other than in relation to sex) the schedule 22 exemption would apply to that discrimination claim.

Secondly, once again, the premise of the ground is that the tribunal ought to have concluded that there was room to argue, in a given case, that a particular employer who had relied upon the Guidance, might have been led by it to dismiss, in circumstances where they were not in fact left with no other option, in which case the schedule 22 exemption would not bite, the claim against the employer might succeed, and the Government respondents might be co-liable.

However, this argument faces the difficulty that, as the ground itself asserts, the Guidance itself addressed the need to consider all the options in the given case. The OG, in the section dealing with guidance for staff, under the heading “Redeployment” stated: “If you are unable to provide proof of vaccination or exemption, then your manager should explore all options available to you. This could include moving you to an alternative role for which vaccination is not required.” However, it went on to caution that “[y]ou should not assume that it will be possible for you to be redeployed”; and, under the further heading “Dismissal”, it repeated again that “your manager should explore all options”, but continued that “you should note that the regulations may provide a fair reason for dismissal if you are not vaccinated or medically exempt.”

Mr Brown also drew attention to the substantial Annex A: headed “good employment practice”. This included references to various guidance available from ACAS, to the possibility of a duty to consult with a recognised union or employee representatives, and to the need for individual engagement and information gathering. It went on, under the heading “Staff who are not vaccinated or exempt” to state that in such cases “care homes should explore all options”, including redeployment, paid or unpaid leave, before indicating that some care homes “having exhausted alternative options” , may have to consider dismissing, while adding that they must comply at all time with employment and equalities law and adhere to good practice. Further sections considered the implications of the law of unfair dismissal, including a list of steps to take before dismissing including “exploring alternatives to dismissal”.

This also included a section on the Equality Act, which explained the concepts of direct and indirect discrimination. It then noted (in what was clearly a reference to schedule 22) that a care home would not contravene it if it “does anything that it must do pursuant to the regulations” and that this exemption only applied to certain characteristics. It stated that “where a care home must dismiss some staff as a result of the regulations, and selects staff in a non-discriminatory manner, the exemption may be available because of the requirement of the regulations”; but, subject to that exemption, the care home “may have to justify the treatment”. In the context of justification, it noted that as long as a care home “cannot take other reasonable steps to avoid dismissing staff”, it was likely to be able to show that dismissal was proportionate and justified.

I can detect no error in this material, in terms of the guidance that it gave as to the potential implications of the law in relation to unfair dismissal and the potential implications of the Equality Act. It was accurate in its description of the provisions of regulation 12(3)(b), of the scope of the schedule 22 exemption, and in its account of the circumstances in which the latter might or might not bite by virtue of the former. It also made clear that it was not the law that, if regulation 12(3)(b) applied in a given case, then the employer was, for that reason, obliged, or automatically entitled, to dismiss. Mr Milsom said in oral submissions that he did not contend that any of this guidance as to the law was wrong. But he said that it showed that the Government was “alive to the possibility of dismissal”. Indeed it was, but that insight does not advance the ground. In light of all this content, the tribunal did not err by failing to conclude that the Guidance might arguably mislead, or cause, employers to dismiss in circumstances where the schedule 22 exemption did not in fact apply.

Before I leave this ground there is one further point. Mr Milsom argued that the use of the word “must”, and the guidance in authorities such as Hampson, suggested that, in fact, an employer could not succeed in the argument that dismissal was something that they “must” do to comply with the regulation. He also referred to the examples given in the Explanatory Memorandum to the 2010 Act. However, the test is whether the conduct in question is something that the actor “must do pursuant to” the requirement of the enactment. That does not mean, nor do the authorities hold, that the requirement itself must expressly refer to the conduct in question. Nor do the examples in the Explanatory Memorandum support that contention. This is a fact-sensitive question that, as between the claimants and the employers, will fall to be determined on a case-by-case basis. Further, as we have seen, the Guidance was clear that it did not suggest that the regulations necessarily required all non-vaccinated care workers to be dismissed in every case.

What that leaves, however, is the claimants’ contention that there might still be cases in which a dismissal amounted to indirect discrimination in respect of which sections 111 or 112 were satisfied. I now turn to the grounds challenging the tribunal’s conclusions about those particular provisions.

The headline of this ground is: “The ET erred in its approach to s111 EqA 2010”.

In substance this ground contends that the tribunal erred in its conclusion that there was no reasonable prospect of success in securing a finding that section 111(7) was fulfilled, that is, that the Government respondents was “in a position” to commit a basic contravention as against each of the first respondents – being the care homes concerned. This challenge is advanced in a number of ways.

First, it is said that the tribunal wrongly confused the question raised by section 111(7) – which was not whether the Government respondents arguably did commit a basic contravention, but whether they were in a position to do so. But I do not agree that the tribunal fell into that error.

At [81] the tribunal addressed the question of what would need to be shown to support the conclusion that these respondents had in fact instructed, caused or induced a basic contravention contrary to section 111(1), (2) or (3), correctly directing itself by reference to Saiger that a finding that a person was in a position to do such things would not alone be sufficient. As to section 111(7) the tribunal, at [84] to [89], referred throughout to its consideration, and discussion with Mr Hyland, of how the claimants put their case as to how the DHSC and/or SoS were “in a position” to discriminate against the first respondents for the purposes of that provision. The account given there, of the exchanges with Mr Hyland, was not disputed before me; and it shows that his stance was to focus on the claimants’ case that “the basic contravention was issuing discriminatory guidance.”

Secondly, and relatedly, it is said that the tribunal erred in failing to recognise that it was not necessary, for the purposes of section 111(7), that the party said to be liable under section 111 be in a position to commit a basic contravention as against the party said to have been instructed, caused or induced, in the same way, or under the same part of the 2010 Act. Mr Milsom contended that, in Bailey v Stonewall Equality Limited [2025] ICR 46 (EAT), the employment tribunal had accepted that it would suffice that Stonewall was in a position to be a provider of services to Garden Court Chambers, reasoning which he submitted was “not overturned on appeal”.

I note that the EAT in Bailey did not, in fact, consider or decide the point, because the sole issue on appeal was whether the tribunal erred by not holding that Stonewall had contravened section 111(2) or (3), the conclusion being that it did not. While Mr Brown said that he did not seek to argue that Mr Milsom’s construction of section 111(7) was wrong, I do not need to decide this point of law. That is because I see no sign that the tribunal proceeded on the basis that the potential relationship between the Government respondents and the employers which fulfilled section 111(7) needed to be the same as that between the employers and the claimants. It simply asked, at large, how the claimants put their case that the Government respondents were in a position to commit a basic contravention against the employers, looking to Mr Hyland to explain. Even if Mr Milsom’s construction on this point of interpretation (which Mr Brown did not seek to dispute) is right, the tribunal did not err by taking a more restrictive approach.

Next, the ground postulates that requiring a registered manager to comply with the OG against their religious or philosophical beliefs could amount to harassment; and that, given their role in allocating resources and monitoring compliance, the relationship between the Government respondents and a care home could fall within the scope of section 29(6), concerning the exercise of public functions. However, as Mr Brown pointed out, these particular scenarios were not advanced in the particulars of claim, nor in argument before the tribunal at the PH. The tribunal nevertheless effectively allowed Mr Hyland the opportunity to seek to clarify the claimants’ case on this point in submissions (and he could have applied to amend), but the only matter he sought to rely upon was the issuing of the Guidance itself. The tribunal cannot be criticised for failing to consider scenarios that were not advanced in the live pleadings, nor in argument by the claimants’ representative.

As to the issuing of the Guidance, I agree with Mr Brown that it was not arguable that the Government respondents were in a position to commit a basic contravention as against the employers by the issuing of this particular guidance. That is having regard to all of the features that I have already discussed in greater detail earlier, in relation to its status, scope and content, both in relation to the nature and scope of clinical reasons and in relation to the law.

A further argument raised Mr Milsom in submissions, however, is that the tribunal erred by concluding that the Government respondents were in any event not in a position to commit a basic contravention, on the footing that the provisions of schedule 3 exempted them from any liability they might otherwise have incurred under section 29, by way of the exercise of a public function. That was, he said, because there might be activities by the DHSC or SoS with respect to regulated care homes in exercise of their public functions which did not fall within any of the limbs of schedule 3, whether relating to Parliament, legislation or regulations. I can allow that such examples could, with sufficient ingenuity, be devised, but they were not advanced in the pleaded or argued case before the tribunal, and it cannot be criticised for not entertaining the possibility.

Nor, in my view, could the Government respondents be potentially liable to the employer respondents under section 29 in respect of the issuing of the Guidance itself. Schedule 3 paragraph 2(6) precludes such liability in respect of anything done “in connection with” the imposition of a requirement or condition that comes within Schedule 22. The OG (which incorporated the MEG by reference) was, on any view, introduced “in connection with” the introduction of regulation 12(3), which was an enactment, the requirements of which therefore fell within schedule 22. That is so, even though it did not bite in respect of discrimination by reference to all available characteristics.

Although this may, strictly, have gone beyond the scope of ground 3, I also heard argument as to whether the tribunal erred by failing to conclude that it was arguable that publishing the Guidance, instructed, caused or induced (assumed) indirect discrimination by the employers. Mr Milsom relied on the Imperial Society of Dancing case, which he suggested indicated that instructing or inducing had a wide ambit, and the matter was fact sensitive. However, the EAT in that case said ([1983] ICR 473, 476B-C) that in its ordinary meaning “induce” means to “persuade to prevail upon or bring about”. Further, in Bailey (at [103] – [105]) Bourne J considered that the introduction, in the 2010 Act, of “cause” alongside “induce” was significant, and that “induce” was broadly synonymous with “persuade”.

In any event, in my judgment, on any view of the meaning of “instruct” or “induce”, given both the status and content of the Guidance, and particularly its content in relation to the law, I do not think it arguable that the issuing of it amounted to instructing or inducing any unlawful discrimination that a given employer may have committed.

As to “causing” Mr Milsom relied on two features of the analysis in Bailey. First, section 111 does not refer to any mental state, nor does section 19 require any. So there could be liability for causing a PCP contravening section 19 to be applied without that being known or intended (Bailey at [100] – [101] and [114]). Secondly, Bourne J (at [107] – 123]) concluded that, for causation to be established, the impugned conduct must be a “but for” cause of the discrimination; and the connection between the two must be such that it would be “fair or reasonable or just” (those adjectives being interchangeable) that the putative causer be held liable. Mr Milsom argued that this showed that the issue of causation under section 111 is a fact-sensitive matter, and that the present tribunal was not in a position at this PH to say it was not arguable that the Guidance caused any discrimination found.

In considering that submission I bear in mind what I said earlier about the possibility of what may be said to be a pure issue of law being, in reality, a mixed issue of fact and law. However, once again, I do not consider that there were any material disputed facts relevant to this issue. There was no dispute that the Guidance had no special legal status. There was none that the DHSC had indeed issued it. The contents were a matter of undisputed record. As I will discuss when considering ground 4, there was also no pleaded case enabling the claimants to arguably rely upon any putative conduct by these two respondents other than the issuing of the Guidance, as such.

The employment tribunal did not have the benefit of the EAT’s decision in Bailey. Mr Milsom also told me that an appeal in Bailey is pending in the Court of Appeal; but neither counsel suggested that I should defer determining this appeal on that account. I must apply the law as it stands today. The point has been fully argued before me and I am in a position to do so.

In this case, once again, given that (as I have found) what the Guidance had to say about “clinical reasons” was in line with regulation 12(3)(b), and given its balanced and accurate account of the law, and the consistent theme of seeking to advise employers of what was necessary to ensure that they complied with the law, I simply do not regard it as arguable that a tribunal could properly find it fair, reasonable or just, to hold the SoS or DHSC liable for any indirect discrimination found on the part of an employer, simply by virtue of having issued the Guidance.

The headline of this ground is: “The ET erred in its Approach to s112 EqA 2010.” Two substantive challenges are advanced. The first is that the tribunal erred in concluding that inducement or procurement outside the scope of section 111 could not be caught by section 112. The second is that it erred at [102.3] in concluding that the concept of “knowingly help” could not encompass the issuing of non-binding guidance the intention of which was to assist registered persons with their statutory duties. A number of more particular points are advanced under that limb of the ground. I can take with this ground the contention, which I have noted was raised under ground 1, that the tribunal also erred in [102] by relying on the lack of “evidence” when determining a strike-out application at a PH at which, in the nature of things, no evidence was presented.

My conclusions are these.

First, I think it is clear from reading the relevant passages in the tribunal’s decision as a whole, that the tribunal mis-expressed itself when it said at the beginning of [102] that the claimants had not provided “evidence”. It is clear from the substantive content of that paragraph, as well as the discussion leading up to it, that the tribunal considered that the factual case advanced would not arguably establish liability under section 112. Essentially it accepted Mr Brown’s submission that it was not arguable that the issuing of the Guidance could in law amount to knowingly helping the employers to discriminate; and that in any event liability would be precluded by schedule 22 and/or schedule 3. I note that either of these conclusions, if properly reached, would have been sufficient to support the striking out of the complaints against these respondents under section 111.

As to “knowingly helping”, firstly, the substantive pleaded case against the Government respondents was that the conduct on their part that was said to contravene section 112 was the act of introducing the Guidance itself. In each case the pleading focussed on the content of the Guidance. While it was also pleaded that these respondents contravened sections 111 and 112 by “using the Guidance as the basis for CQC enforcement” the more detailed pleading in relation to that related to the alleged conduct of the CQC, which the pleading correctly identified was the body tasked with compliance with the 2014 and 2021 Regulations. While the pleading said that the CQC was an executive non-departmental public body “of the [DHSC]”, the case was – correctly – advanced on the basis that it was a separate legal entity and a separate respondent.

The original pleadings did also assert that it was clear that the CQC “has been directed by the Second and/or Third Respondent to assess compliance by reference to the Guidance rather than the Regulations”, but no particulars were given of that in those pleadings. Even the later further and better particulars volunteered on this point did not take the matter any further than the bare assertion, stating that it “is not known what statements were made to R4 and R5 by R2 to R3”.

That being the state of the pleadings, it was not an error for the tribunal not to conclude that there was an arguable case that, if, taking the claimants’ claims at their highest, their employers had indirectly discriminated against them, then the Government respondents had knowingly aided that by giving some direction to the CQC, which in turn had done some proscribed act at their behest.

Nor did the tribunal err by considering whether there was an arguable case of knowingly aiding by the act of issuing the Guidance in and of itself, on the footing that it was not in a position to do that at this PH, because the matter was fact sensitive. There was no factual dispute that the Guidance had been issued by the DHSC and no factual dispute as to its content (and the SoS was also a respondent, against the eventuality that it might be held that the Guidance was formally issued by the SoS rather than by the DHSC). The matter turned on the content and status of the Guidance itself, and the correct understanding of the meaning in law of “knowingly help” in section 112(1). As to that, the tribunal concluded at [102.2] that “knowingly help” should be given its ordinary meaning, and that it could not encompass conduct amounting to instructing, causing or inducing within section 111. I do not think it erred in so holding.

Although the ground cites Anyanwu, I consider that the discussion in that case supports the tribunal’s conclusions. It concerned a predecessor of section 111, section 33(1) Race Relations Act 1976, which used the expression “knowingly aids”. Lord Bingham said in Anyanwu at [5] that “the expression ‘aids’ … is a familiar word in everyday use and it bears no technical or special meaning in this context. A person aids another if he helps or assists him.” Lord Bingham also said that, while a party who knowingly aids another could also procure or induce their act, those latter expressions were found in separate sections (section 30 and 31) and differently enforced. He continued: “they mean something different from ‘aids’ and there is no warrant to interpreting ‘aids’ as comprising these other expressions.” The other Law Lords concurred with Lord Bingham’s interpretation of the statute. In Hallam, Lord Millett, at [18], referring to what he had said in Anyanwu, said that “aiding requires a much closer involvement in the actual act of the principal than do either encouraging or inducing on the one hand, or causing or procuring on the other.”

Although section 112 uses the expression “knowing help”, it is headed “Aiding contraventions”. Lord Bingham regarded “help” and “aid” as synonyms. It is clear that “knowingly help” is merely intended to be a plainer way of saying “knowingly aids”, not to change the meaning. Parliament has also in the 2010 Act maintained the approach of having what is now the “knowingly aids” prohibition in a separate section (though the others are now grouped together in a single section, rather than two, and the language is also plainer). There is no equivalent of section 111(7) in section 112 and the enforcement mechanisms are different. I conclude that Lord Bingham’s remarks about the lack of overlap with the other prohibitions, and indeed the remarks of Lord Millett, still hold good.

I also do not think that it was, or is, arguable that, if, in a given case, a claimant’s employer indirectly discriminated by dismissing them, the issuing of this Guidance helped that conduct. That is essentially having regard to the facts (all as discussed above) that the Guidance had no special legal status, it was accurate in all respects in its account of the law, including in relation to regulation 12(3)(b) and schedule 22, its plain purpose was to support compliance with the law, it conformed to regulation 12(3)(b), and, it made it clear that it was the responsibility of the registered person to check the vaccination and exemption status of individuals. Having regard to all of these features, the tribunal did not err by concluding at [102.1] that any conduct of the first respondents which fell outside of the reach of regulation 12(3) could not be the responsibility of the other respondents.

Those proper conclusions were sufficient to support the tribunal’s decision to strike out the section 112 complaints against these respondents. The further holding that schedule 22 and schedule 3 between them in any event precluded liability under this section was therefore not essential to that outcome. Even if Mr Milsom was right that the gap in the schedule 22 exemption in relation to complaints relying upon the characteristic of sex could not be filled by schedule 3 in respect of non-statutory guidance of this sort, that would not be sufficient to disturb the judgment.

Standing back, I note again that, as Mr Milsom was at pains to repeat, this appeal is not a challenge to the regulations. It is a challenge to the Guidance. Further, it seems to me, the central thrust of the challenge was the contention that the Guidance should have been regarded by the tribunal as narrower in its approach to the concept of clinical reasons than the regulations. That was no longer, as before the tribunal, advanced on the basis that clinical reasons should be construed as including mere unwillingness to be vaccinated; and it was accepted that clinical reasons means, in this context, medical reasons. But it was contended that the Guidance was unduly restrictive in other ways, in particular in relation to individuals who may be found to have been actuated by a protected philosophical or religious belief, who were disabled, or who had concerns which were related to the fact that they were trying to conceive or were breastfeeding.

For the reasons I have given, that central challenge has failed.

Having regard to that, to the status of the Guidance, and in particular to its content, both in relation to the concept of “clinical reasons” and in its treatment of the law, I have also concluded that it was and is unarguable that the issuing of the Guidance amounted to a contravention of sections 111 or 112. There was no other pleaded basis upon which those respondents could arguably have been held liable under those provisions.

These conclusions alone mean that, regardless of how matters stand in relation to section 111(7) or schedule 3, and even on the assumption that some, or all, of the employers followed the Guidance, and even on the assumption that some, or all, of the claimants may succeed in their indirect discrimination claims against their individual employers (which this decision of the tribunal has not determined or precluded), the tribunal did not err in dismissing the complaints under section 111 and 112 against the Government respondents.

The appeal is accordingly dismissed.