Dismissal for refusing Covid Vaccination was fair
In a recent case, an employment tribunal has found that the dismissal of a care home employee for refusing to be vaccinated against COVID-19 in January 2021 was not unfair. Although the tribunal accepted that the employee’s fear of and scepticism about the vaccine was genuine, the requirement to be vaccinated was a reasonable management instruction and she had no medical authority or clinical basis for refusing.
The employee worked as a care assistant in a nursing home providing residential care for dementia sufferers. In January 2021 the employer decided to make it a condition of continued employment that workers were vaccinated against Covid.
The employee did not wish to have the vaccine as she did not trust the vaccine’s safety. She believed it had been rushed through without proper testing, had read stories on the internet about a Government conspiracy and felt nobody could guarantee that the vaccine was safe.
The employer implemented the requirement to protect staff, residents and visitors and had also been informed by their insurer that insurance against Covid related risks would no longer be provided after March 2021.
The employee was dismissed for failing to follow a reasonable management instruction because of her refusal to be vaccinated as she posed a real risk to the health of residents, staff and visitors and did not have a reasonable excuse for not taking up the vaccine. The employee made a claim of unfair dismissal.
The tribunal concluded that the employer had a legitimate aim in implementing the policy and the employee’s fears, whilst genuine were unreasonable. Balancing the obligations of the employer towards its staff and residents with the employee’s reasons for refusing vaccine, the Tribunal concluded the dismissal was fair and did not interfere with the employees Human Rights.
This case arose at a time when there was no mandatory requirement for care home staff to be vaccinated and yet the Tribunal still concluded the requirement of the employer was legitimate and reasonable. Whilst each case is likely to be taken on its facts, it does lend support to employers that have to dismiss staff that refuse the vaccine in circumstances where it is mandatory, as well as in some circumstances where it is not. However, where there’s no mandatory requirement there will need to be a very clear business need for the vaccine and an assessment of the reasons for the employee’s refusal. There remain risks in circumstances where vaccines are refused for medical and religious reasons and these will still need to be properly assessed and balanced against the business need to avoid risks of discrimination and unfair dismissal.
Author: Sarah Edwards, Senior Employment Law Solicitor at Howarths
