For a while during the pandemic, regulations required the managers of care homes to bar care-home workers from premises unless the worker provided evidence that they had been vaccinated or had clinical reasons for not being so. The claimants in these proceedings were not vaccinated and were dismissed. They brought claims of unfair dismissal and indirect discrimination, relying on one or more of the protected characteristics of religion or belief, disability, sex and/or age. Those claims are defended and have yet to be tried but attempts to get the Secretary of State for Health and Social Care and Department of Health and Social Care listed as respondents, as a result of the guidance made at the time, were struck out by the employment tribunal.

In the EAT, it was contended that the tribunal erred by not concluding that the Guidance wrongly took too narrow an approach to the concept of clinical reasons. However, the EAT concluded that the content of the Guidance in that regard was in line with the regulations, and did not take a narrower approach. In his summary HHJ Auerbach stated:

"Having regard to the content of the Guidance in that respect, and its discussion of the law, the tribunal did not err by concluding that it was not arguable that the issuing of the Guidance amounted to instructing, causing, inducing or knowingly helping, any indirect discrimination on the part of any of the claimants’ employers that might at trial be found to have occurred."