Compulsory Vaccination
One of the many new issues that employers have been wrestling with in this new Covid-19 pandemic landscape is the sensitive issue of mandatory vaccination.
The debate raises difficult issues and a potential conflict between the desire to protect staff, customers/service users, and the general public, against human rights issues such as the individual right to make decisions about medical treatment.
Can an employee be dismissed for refusing to be vaccinated?
We covered these issues in a previous blog No jab, no job? On 3 March 2021 [https://www.bto.co.uk/blog/no-jab,-no-job.aspx].
While vaccination became mandatory for care home workers (unless exempt) in England in November 2021, and the same is currently scheduled for some English NHS workers in April this year, the Scottish government has so far been reluctant to make vaccination mandatory, or a condition of employment in certain sectors.
While there has been considerable discussion recently about one offshore energy firm making vaccination compulsory for its offshore workers, the Scottish government’s position has been that while it strongly recommends that individuals get vaccinated, it remains a personal choice. It advises employers to maintain a voluntary approach and merely encourage vaccination.
This puts the onus on employers to decide whether vaccination should be a requirement for being offered a role, or indeed for continuing in employment. If employers do introduce such rules, and dismiss staff who are not vaccinated, there is a real risk of claims being brought, especially if the employee has over 2 years’ service.
The recent employment tribunal decision in Allette v Scarsdale Grange Nursing Home Ltd addressed these issues. While the decision (as with any employment tribunal decision) does not have to be followed by any other employment tribunal, it is a useful guide to the sorts of issues a tribunal is likely to consider.
In this case, the Claimant was employed in a care home in England (before the law made vaccination compulsory) and objected to being vaccinated as she felt the vaccine had been rushed through without proper testing and was not safe. After an internal process, the employee was dismissed for refusal to follow a reasonable management instruction. The manager felt that the employee’s unvaccinated status posed a danger to residents, and that the employer’s insurer was withdrawing cover, meaning the care home could be liable itself for compensation if a resident caught Covid from an unvaccinated staff member.
The tribunal considered that the employee’s fears were genuine but unreasonable, as there was no clinical or medical basis for her concerns. The home’s policy was introduced when there was still a relative lack of knowledge about the pandemic and how it would progress. While the policy did interfere with the employee’s human right of privacy, that interference was justified in all the circumstances.
The employee suggested at the tribunal hearing that the employer should have directed her to independent scientific sources of information, however, the tribunal rejected this on the basis that the employer had referred her to Public Health England and government advice. Overall, the employer had acted reasonably in very difficult circumstances, in deciding to dismiss the employee to ensure the safety of residents.
This decision should not be assumed to say that it will always be acceptable to dismiss employees for not being vaccinated. Every case will depend on its own very specific facts, including the current public health guidance, the prevalence of the virus, the vulnerabilities of staff and customers etc. As the severity of the virus hopefully continues to wane, it may be that it will be increasingly difficult for employers to justify dismissal.
To discuss this issue, please contact our expert team of employment lawyers.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
