An employment tribunal has dismissed a claim for unfair dismissal brought by a care home worker who refused to be vaccinated. The dispute goes back to January 2021, in the early days of the vaccination roll out, and well before the regulations were passed which made vaccination a condition of deployment in care homes.
The claimant was employed as a care assistant at a family-run care home in Sheffield, providing residential care to dementia sufferers. Following a severe outbreak of COVID in the home, in which a number of residents died, the owners decided that all staff should be vaccinated. The claimant was the only one who refused.
She was suspended, and following a disciplinary hearing, was summarily dismissed for gross misconduct. Her appeal was unsuccessful. There was no suggestion that there were medical reasons for her refusal to be vaccinated, and although religious reasons were raised at one point in the disciplinary process, these were not relied upon when the case proceeded to the tribunal.
The employment tribunal decided that, in the particular circumstances, dismissing her for misconduct had been within the range of reasonable responses, and therefore fair. In addition, since the instruction to be vaccinated had been a reasonable management instruction, her employers were not in breach of contract to dismiss her without notice.
As a first instance decision, this ruling is not legally binding. In any case, the tribunal made it clear that its decision was based on the particular circumstances of the case, and did not mean that a refusal to be vaccinated would amount to gross misconduct, or even misconduct at all, in another case on different facts.
In this case the employers decided to act on their own initiative to make vaccination a condition of continued deployment. The position in care homes is different now, since to employ unvaccinated staff has been in breach of coronavirus regulations since 11 November 2021, unless there is medical or other exemption. As from 1 April 2022, broadly the same rules will be extended to the health and wider social care sector.
As a result, employers will no longer need to rely on misconduct as a potentially fair reason for dismissing unvaccinated staff in these settings. However, it is significant that an employment tribunal was prepared to find a decision to dismiss an unvaccinated member of staff fair, even when the employer was not legally compelled to make vaccination a condition of deployment. It follows that, provided due process is followed, it is likely to be fair to dismiss a member of staff if continuing to deploy them in their current role would put the employer in breach of the regulations and there is no alternative position to which they can be transferred.
However, this case turned out to be relatively straightforward for the employer to navigate. In a small family-run business the redeployment options would have been limited, there was no medical reason for refusing vaccination, and the claimant did not, in the end, rely on her religious beliefs to support her decision not to have the jab.
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