Dismissal for failure to take COVID-19 vaccine found to be fair

By Pauline Hughes, Solicitor.

An Employment Tribunal has found that a care home worker was fairly dismissed for refusing to take the COVID-19 vaccine.

The employee worked in a home which provided residential care for dementia sufferers. The employer had no contractual right to require that the employee was vaccinated, nor was vaccine refusal misconduct under the employer’s disciplinary policy. Despite this, following an outbreak of the virus in the home, the employer issued the claimant with a management instruction that she must be vaccinated against COVID-19 in January 2021, otherwise she would face disciplinary action. The claimant was the only employee who refused to be vaccinated. During a telephone call with her employer, the employee initially stated that she did not want to have the vaccine because she felt as though it had not been properly tested, she had read stories online about it being a Government conspiracy and she believed no one could guarantee its safety.

At her disciplinary hearing, the employee argued for the first time that the real reason for her refusal was linked to her religious beliefs. She was a Rastafarian. The employer explained to the employee that the nursing home’s insurers confirmed that they would not provide public liability insurance for COVID-19 related risks after March 2021 and that the employer faced the risk of liability if unvaccinated staff passed the virus onto a resident or visitor. The disciplining officer decided that the employee did not have a reasonable excuse for refusing the vaccine and if she remained unvaccinated, she would be a risk to the health of staff, visitors and residents. The employee was therefore dismissed for failing to follow a reasonable management instruction.

The Tribunal decided that the employee’s human rights had not been infringed and the requirement for all staff to be vaccinated was justified in the circumstances, given that there was a “pressing social need” to reduce the risk of exposing vulnerable residents to the virus. Whilst the Tribunal accepted that the employee had a genuine fear and scepticism about the vaccine, as she had no medical authority to support her position and as the employer was not aware of her religious views until the disciplinary hearing, the Tribunal found that any interference with the employee’s private life was justified. Further, the Tribunal found that it was reasonable for the employer to take the view that the employee did not have a reasonable excuse for refusing to have the vaccine and, as such, her dismissal was fair.

Although this is a first instance decision which is not binding on other Employment Tribunals and the dismissal occurred before it became a legal requirement in England for healthcare workers to be vaccinated, this judgement may point towards the direction of travel of the case law to come regarding vaccine refusal in the workplace. While real caution must still be exercised by employers when dismissing unvaccinated employees, and particularly healthcare workers, the case does show that public health considerations may weigh heavily on the minds of judges in deciding such cases.

It is possible that on a different set of facts, an employee’s religious beliefs may be given greater weight than they were in this case. Specialist advice should always be taken before considering dismissal in difficult cases like this one.

The full judgement can be read here.

If you have any questions regarding this update, or if you require support or advice on any other employment law matters, please do not hesitate to contact Just Employment Law on 0141 331 5150 or [email protected].