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CASE UPDATE: Dimissal for refusing to be vaccinated was fair!

25 Jan 2022

The facts: the employee worked in a care home providing personal care to the home’s residents. She refused to be vaccinated in January 2021 on the basis that a) she had had COVID19 and was immune b) the vaccine was unsafe and c) her religious beliefs (Rastafarianism) meant she could not be vaccinated. She was dismissed for gross misconduct – namely a failure to follow a reasonable management instruction. Please note the facts of this case took place before legislation took effect in November 2021 requiring vaccination for care home workers.

The decision: In all the circumstances, the employer’s decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. The employee’s dismissal was therefore fair. Further, there was no interference with the employee’s human rights, namely, the right to a private life.

What do we learn?  this decision is likely to be useful in determining whether an employer has acted reasonably in similar circumstances. It does not mean that refusing to be vaccinated will amount to gross misconduct, or even misconduct, in every case.

 

Of relevance in this case was that:

  •  the employer was a small employer;
  • there had been a recent and severe outbreak of COVID19 at the home;
  •  the residents were extremely vulnerable;
  •  the employee appeared to have been dishonest about her religious beliefs;
  •  the employer’s insurance company had flagged concerns with providing cover for unvaccinated staff;
  •  the employee was dismissed at the height of the pandemic at a time when urgent action needed to be taken to protect society.

Should you require any advice or support with the above, please do not hesitate to contact the team.