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Dismissal due to refusing covid-19 vaccine deemed fair in employment tribunal

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A recent judgment in the employment tribunal will be of great interest to the people following or affected by the “jabs for jobs” policy. Government legislation changes have meant that employees within certain sectors have been told that they must be vaccinated against covis-19 or face losing their jobs. This has inevitably caused uproar within groups who are affected by this change.

The judgment provided on 11th January 2022 involves a care home worker, with 13 years’ service, dismissed for refusing her COVID-19 vaccination by the respondent residential care home.

The claimant became aware that the home had decided to make it a condition of continued employment to be vaccinated. This was despite there being no reference to mandatory vaccinations within the employment contract and at the time vaccines had not been made mandatory within that sector by the government.

The claimant explained that she was sceptical about the safety of the vaccines as she felt they had been rushed through without proper testing, her own internet research had provided information about a government conspiracy, and no-one could confirm the safety of the vaccine.

The respondent provided that their insurer had advised they would not cover liability for any future covid related outbreaks caused by unvaccinated employees. The claimant advised her employer for the first time within the disciplinary meeting that she was a practising Rastafarian and was refusing the vaccine for religious reasons along with her mistrust in the vaccine.

The claimant was summarily dismissed for gross misconduct for her failure to follow a reasonable management instruction, she pursued a claim for unfair dismissal and wrongful dismissal to the employment tribunal.

The tribunal had to consider if the dismissal breached the claimant’s right to respect for private life under article 8 of the European Convention of Human Rights. Rights protected under article 8 are qualified rights, meaning that they can be interfered with by a public body in certain circumstances.

The tribunal (as the public body) held that there was an interference with the claimant’s article 8 right, but the respondent had a primary legitimate aim of protecting the health of staff, residents and visitors, and a secondary aim of not breaching its insurance policy. The mandatory vaccine policy corresponded to a pressing social need of reducing risks to residents, who were vulnerable individuals and their rights under article 8 needed to be balanced with that of the claimant’s, with consideration given to the fact that the residents had little choice about who came into their home.

The tribunal held that the interference with the claimants right was justified and also considered that the dismissal was reasonable under S.98(4) of the Employment Rights Act 1996 as the claimant did not have a reasonable excuse to refuse management instructions in being vaccinated. Both of the claimant’s claims were dismissed by the tribunal with the dismissal deemed as being fair.

It is worth noting that the claimant did not include discrimination within her claims and future claims will be judged on the facts at the time.

Whatever your views are on the “jabs for jobs” regime this is a noteworthy result due to the number of care home workers that have already lost their jobs, and the government’s recent U-turn on extending mandatory vaccination status to health and wider social care settings.

By Joanne Ribchester, pralegal in the employment and discrimination department

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