A word of caution – Dismissal of an anti-vaccination employee ruled to be fair

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Does this decision lend grounds for employers to dismiss staff refusing a COVID-19 vaccine at present?

Author: Kiril Moskovchuk
Published:
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This article is 4 months old.

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An employment tribunal, in the first decision of this sort, upheld the dismissal of a care assistant who was asked to be vaccinated but refused.

Does this decision lend grounds for employers to dismiss staff refusing a COVID-19 vaccine at present? We should not think so.

In this particular case, the nursing home started rolling out vaccinations to its employees and residents in December 2020. The vaccinations had to be postponed due to an internal outbreak of COVID-19. During this time, the employee in question became infected and fortunately recovered. Vaccinations resumed in January 2021. The insurers informed the nursing home that the cover for COVID-19 risks would be removed from March 2021 as unvaccinated staff might infect the residents.

The care assistant was reluctant to get vaccinated. In a conversation with her management, she raised doubts that the vaccine was entirely safe. She also argued that she was immune from the coronavirus as a result of the recent infection. She was warned that if she did not get vaccinated, she would then be suspended on full pay pending a disciplinary action.

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The employee continued to refuse the vaccine, was then suspended on full pay, and invited to a disciplinary meeting for refusal to adhere to a reasonable instruction of her management.

At the meeting, the employee pleaded that she was refusing the vaccine on the grounds of her religion. This was rejected. It was also put to her that her doubts as to the vaccine safety were unreasonable and did not justify her refusal. It was also rejected that because she had COVID-19, she became immune to it.

The employment tribunal concluded that the instruction to get vaccinated was reasonable and the employee’s grounds for refusal were not a good excuse. Although religious discrimination was pleaded, the tribunal found that the true reason for avoiding the vaccination was a genuine concern about the safety of the vaccine, but this concern was unreasonable. There were no legitimate medical or clinical basis to refuse the vaccine.

The tribunal also took note that the nursing home requested vaccination to protect its staff and residents in the circumstances of soaring infection rates.

Refusal to get vaccinated amounted to gross insubordination and refusal to perform legitimate instruction, which were quoted as examples of gross misconduct in the disciplinary policy.

It needs to be noted that the tribunal would evaluate the employer’s actions at the time of the dismissal. Had the care assistant been dismissed at present, when the COVID-19 situation has changed significantly, with the lessening of the restrictions and cancellation of the regulations requiring mandatory vaccination, the tribunal may have well reached a different decision. Certainly, a situation justifying compulsory vaccination for the workers in the motor industry would not be easy to imagine.

What is also worth noting is that the nursing home followed the correct employment procedure and the tribunal did not find any procedural breaches.

The employer issued a formal instruction to get vaccinated and the refusal was dealt with as a disciplinary matter. The employee was dismissed for gross misconduct based on the disciplinary policy of gross insubordination and refusal to perform a reasonable instruction as examples of the gross misconduct. The employee was able to argue her case at the disciplinary hearing. The suspension prior to the hearing was on full pay.

The tribunal was persuaded that the employee was treated fairly and the dismissal procedure was reasonable. The requirements for a reasonable dismissal procedure may not be straightforward and may pose some difficulty for an employer without an experienced HR department. Lawgistics’ members should always contact our helpline in case of any doubt as procedural mistakes may prove much easier to prevent than to rectify.

Kiril Moskovchuk

Legal Advisor

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