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Is it unfair dismissal if a care worker refuses the Covid-19 vaccination?


Cases are now coming through the employment tribunal regarding care workers who refused the Covid-19 vaccination in 2020 and subsequently were dismissed.

The employment tribunal found in the case of Allette v Scarsdale Grange Nursing Home (SGNH) Ltd, that the dismissal of a care home employee for refusing the Covid-19 vaccine in January 2021 was not unfair.

The care assistant worked in a residential care home which provided care to dementia sufferers.  Unfortunately the care home was hit with a Covid-19 outbreak in December 2020, the same time nursing home resident and staff were eligible to receive the Covid-19 vaccination.  The Covid-19 outbreak lead to several deaths within the care home.  The roll-out of the vaccine was delayed until January 2021 due to the outbreak, although at this time it was not mandatory for care home staff to receive the vaccine.

The care assistant found out a day before she was due to receive the vaccine that SGNH Ltd had made it a condition of her continued employment that she received the vaccine.  The care assistant explained to SGNH Ltd that she did not want to receive the vaccine due to various reasons including the fact that she felt that the vaccine had been rushed through without proper testing.

On 28 January 2021 during a disciplinary hearing the care assistant stated that she refused the vaccine for religious reason as she was a Rastafarian.  Until that point SGNH Ltd were unaware that the care assistant was a Rastafarian.  SGNH Ltd explained that their insurers were not willing to provide cover if unvaccinated staff were found to have passed on Covid-19 to residents or visitors after March 2021.

The care assistant was subsequently dismissed for refusing to follow a reasonable management instruction.  SGNH Ltd believed the care assistant did not have a reasonable excuse for refusing the vaccine.

The care assistant commenced a claim for unfair and wrongful dismissal against SGNH Ltd.

The care assistant’s claim was rejected.  The tribunal accepted that the care assistant’s scepticism and fear surrounding the vaccine were genuine.  However the tribunal stated that the care assistant had no medical authority or clinical basis for refusing the vaccine.

The tribunal also found that SGNH Ltd were genuine in not believing the care assistant’s refusal of the vaccine based on religious grounds as this was only provided as a reason at a later stage.

The tribunal stated that the requirement to be vaccinated was a reasonable management instruction, given the risk that SGNH Ltd would invalidate their insurance by allowing the care assistant to continue to work unvaccinated.

It is no longer compulsory for care home workers to be vaccinated but the above case may be useful in judging how a tribunal will review matters if an employee is dismissed in other sectors for failing to be vaccinated.

For advice on this, or any other employment matters, contact the employment team on 01905 723 561 or email: Guy.salter@smesolicitors.co.uk or Sonia.ali@smesolicitors.co.uk

Added: 09 May 2022 16:30


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