Unvaccinated care worker fairly dismissed (26 Jan 2022)

The words on everyone’s minds right now are “Mandatory Vaccine“. If you work in the healthcare sector you will know that from 01 April 2022 you will need to be double vaccinated or be able to evidence a valid exemption. It has become a great concern for employers who will be losing staff, who are refusing the vaccine. The key concern being how to dismiss them fairly.

At the time there was no law requiring vaccinations. The Care Home decided to dismiss their employee who refused to be vaccinated and determined vaccinations were a necessity to protect their residents, staff and wider community.

It is important to remember that each case is decided on its own facts. This does not always mean future decisions will have the same result. What we can take from the case is the Tribunal’s continued reference to the process the Care Home followed when dismissing their employee. When the Care Home requested that the employee was vaccinated as a condition of her employment she refused to on the grounds of concerns but did not back the concerns up with evidence. The Care Home managers took steps to address their employees concerns. However, the employee remained adamant that they would not be having the vaccine, even though they were aware they would lose their job. The Care Home managers made the decision to suspend the employee and invite them to a disciplinary hearing on the grounds of gross misconduct. Following their internal disciplinary process in full they heard evidence from the employee that her concerns went beyond worries but stemmed from her Rastafarian beliefs. However, the Care Home managers were satisfied that the employee had failed to provide evidence of their concerns that would justify their decision to refuse the vaccine.

When the Judge reviewed the case the decision to side with the employer was based on the employers detailed notes of all conversations with the employee throughout their decision making process. The employer demonstrated that the decision made was to meet a legitimate aim to protect the safety of the residents, staff and visitors to the Care Home. The second aim they demonstrated was their concern for the insurers withdrawing their cover if they did not follow the advice of the insurers to encourage staff to be vaccinated. This combined with the employee’s failure to evidence any legitimate reason for refusing the vaccine and the fact the employee was relying entirely on her memory rather than notes meant the Judge found the Care Homes decision to be fair and proportionate. A combination of factors attributed to the outcome of this case, but the most important appears to be ensuring you follow your internal disciplinary procedure and take advice on your decisions.

Do you have staff who are refusing to be vaccinated? Contact FTA Law to ensure you protect you and your business when moving to dismiss them or terminate their contracts. The Employment team at FTA Law can assist you with both employed and self-employed staff during this difficult time.