Would it be potentially fair for an employer to dismiss a care home employee if the reason for the dismissal was because the employee refused to be vaccinated against coronavirus (COVID-19)?

Would it be potentially fair for an employer to dismiss a care home employee if the reason for the dismissal was because the employee refused to be vaccinated against coronavirus (COVID-19)?

Produced in partnership with Chris Bryden of 4 King’s Bench Walk

The issue of vaccinating staff, who work with vulnerable people, against coronavirus (COVID-19), is particularly relevant following the approval of vaccinations and the prioritisation of such staff.

Although section 45B of the Public Health (Control of Disease) Act 1984 (PH(CD)A 1984) allows for regulations to make provision, among other things, for the medical examination, detention, isolation or quarantine of persons, and PH(CD)A 1984, s 45C allows for regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection, PH(CD)A 1984, s 45E specifically prevents the inclusion of provisions requiring a person to undergo medical treatment, including vaccination and other prophylactic treatment. It is therefore not permitted for the government to require individuals to be vaccinated.

Likewise, there is no provision that allows an employer to compel an employee to be vaccinated, and any attempted physical compulsion would likely constitute not only a civil wrong (the tort of trespass to the person), but it would also be a criminal offence.

For further information, generally, about an employer’s health and safety obligations in the context of the coronavirus pandemic, see Practice Notes:

• Health and safety—employee protection from detriment and dismissal

• Coronavirus (COVID-19)—safe working in an office environment

If an employee refuses to be vaccinated, and they work with vulnerable people, for example, the question arises whether it would be potentially fair for an employer to dismiss them for that reason. Section 98 of the Employment Rights Act 1996 sets out potentially fair reasons for dismissal, which include, among other reasons, the conduct of the employee, or some other substantial reason of a kind such as to justify the dismissal of an employee.

Section 2 of the Health and Safety at Work etc Act 1974 (HSWA 1974) provides that an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. As such, an employer is likely to be required to encourage employees to have the vaccination. HSWA 1974, s 7 provides that employees have a duty to co-operate as necessary with the employer to enable it to comply with any statutory requirements.

Where an employer requests an employee to have the vaccination and the employee unreasonably refuses, then that is likely to be a refusal to comply with a reasonable management request, and hence justify disciplinary action. Where the employee's refusal poses a risk to patients, colleagues or individuals in their care, it may well be within the range of reasonable responses for the employer to dismiss the employee, either on conduct grounds, or for some other substantial reason. For further information, see Practice Notes:

• Reason for dismissal—conduct

• Reason for dismissal—some other substantial reason

However, consideration would need to be given as to whether the circumstances would make such a dismissal fair. If, for example, all the care home residents had been vaccinated, then there is a question as to whether the employee does, in fact, pose a risk by not having the vaccination. Wider considerations such as risk to other staff members, or visitors, would also need to be taken into account.

Moreover, relevant circumstances could, potentially, give rise to a discrimination claim, eg given the possibility that gelatine is used in the vaccine, an employee may have a religious objection to having the vaccination. It is unlikely that a belief based on 'anti-vax' ideas would be found to be a protected belief. For further information, see Practice Note: Religion or belief.

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