COVID-19: Fair dismissal of nursing home worker for refusing vaccine

A Leeds employment tribunal has ruled that a care home assistant disobeyed a legal instruction from management by refusing to be vaccinated against COVID-19 and, as a result, was fairly dismissed.

Facts

The employer operated a retirement home providing residential care for people with dementia. In December 2020, the government began rolling out COVID-19 vaccines to nursing homes. The employer arranged for its staff to be vaccinated at the end of December 2020, but the vaccines were canceled shortly before they were due to be administered due to an outbreak of COVID-19 in the house which caused staff (including the applicant) and residents to contract the disease. A number of residents have died as a result of this outbreak.

At the time, the government had not implemented its mandatory vaccination policy for care home workers, but the employer decided to make it compulsory and rescheduled vaccinations for its staff for January 2021. The claimant refused to be vaccinated, initially stating safety concerns and later referring to the fact that vaccination went against his Rastafarian beliefs. The Plaintiff was disciplined and terminated for refusing to follow a reasonable direction from management to be vaccinated.

During the disciplinary hearing, the employer explained to the plaintiff that its insurers would not provide insurance for risks related to COVID-19 from March 2021 if unvaccinated staff infected residents and a similar situation may arise regarding his employer’s civil liability insurance. The employer sincerely believed that, not being vaccinated, the claimant would pose a real risk to the health and life of residents, staff and visitors to the home. Claimant was offered another opportunity to be vaccinated before her dismissal was implemented, but did not. Her internal appeal having been unsuccessful, she initiated industrial tribunal proceedings for wrongful and unfair dismissal. She did not file a complaint for religious discrimination.

Decision

The labor court dismissed the claims for unfair and unjustified dismissal. The specific points of interest decided by the Tribunal were that –

  • Under the circumstances that existed at the time (in particular the state of the pandemic at the national level and the consequences of the outbreak in the nursing home in December 2020), the employer’s decision to make vaccination compulsory for staff that provided close personal care to vulnerable residents corresponded to a pressing social need to reduce the risk to these people and constituted reasonable management instruction;
  • The Claimant’s refusal to follow her employer’s instructions to get vaccinated was gross insubordination/refusal to carry out legitimate instructions and a serious violation of the employer’s specific rule requiring her not to take action that threaten the health of others. Although the plaintiff was genuinely fearful and skeptical of the vaccine, “relying on unidentified internet sources and believing there was a conspiracy about the vaccine” did not make her refusal reasonable.
  • The applicant’s dismissal for refusing to be vaccinated fell under Article 8 of the European Convention on Human Rights in that there had been an interference with her right to respect for her private life. However, this intervention was justified. The employer had legitimate objectives to protect the health and safety of its residents, staff and visitors during the COVID-19 pandemic and also to preserve its insurance coverage. The plaintiff’s rights under section 8 had to be weighed against those of vulnerable residents and the fact that an unvaccinated person was working from home would constitute an unwarranted interference with the rights of residents.

In practice

This decision will no doubt be of interest to employers at a time when companies continue to face operational and management challenges posed by the COVID-19 pandemic. To our knowledge, this is the first published decision regarding a dismissal for refusing an employer’s mandatory vaccination mandate and it is positive that the Labor Court ruled in favor of the employer.

That said, however, no employer should take this decision as a green light to implement a mandatory vaccination mandate. A significant risk of compulsory vaccination is the potential for claims of discrimination related to disability, religion or pregnancy and none of these have been pursued here. Moreover, this decision is based on the specific facts of this case. The fact that the employer’s activity was the care of very vulnerable people, that a number of residents had recently died of COVID-19 at the time the decision on the vaccination mandate was made, the public health situation and advice at the time of the decision were particularly relevant. , and the risk for the employer’s insurance. As the Labor Court itself pointed out, its decision “cannot and should not be taken as a general indication that a dismissal for refusing to be vaccinated against COVID-19 is fair”.

About Antoine L. Cassell

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