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The Sarah Buxton blog


Newsflash: unvaccinated care worker is fairly dismissed

The words on all our minds right now are 'mandatory vaccine'. If you work in the healthcare sector, you will know that, from 1st April 2022, you will need to be double vaccinated or able to evidence a valid exemption. The risk of losing staff who refuse the vaccine, and understanding how to dismiss them fairly, is now a serious concern for employers.

An employment tribunal has just ruled that the dismissal of a care home worker who refused vaccination was fair. At the time, there was no law requiring vaccinations, but the care home determined that vaccinations were necessary to protect their residents, staff and the wider community.

It is important to remember that each case is decided on its facts, though this does not always mean future decisions will have the same result. In this case, the tribunal continually referenced the followed by the care home when dismissing its employee. When the care home requested that the employee get vaccinated as a condition of her employment, she refused on the grounds of concerns - however, she did not back this up with evidence. Although the care home managers took steps to address the concerns, the employee remained adamant that they would not have the vaccine, even though they knew they would lose their job. The care home managers decided to suspend the employee and invite them to a disciplinary hearing on the grounds of gross misconduct. Following their internal disciplinary process, the employer heard evidence that her concerns stemmed from her Rastafarian beliefs. Since she waited until the disciplinary hearing to disclose this, the care home managers were satisfied that the employee had failed to provide evidence that their concerns would justify their decision to refuse the vaccine.

The Judge based their decision on the employer's detailed notes of all conversations with the employee throughout the decision-making process. The employer demonstrated that the decision was to meet a legitimate aim: to protect residents, staff and visitors to the care home. The second aim was their concern around insurers withdrawing their cover if they did not follow their advice to encourage staff vaccinations. The employee’s failure to evidence any legitimate reason for refusing the vaccine – and the fact she was relying entirely on her memory rather than notes – meant the Judge found the dismissal to be fair and proportionate.

A combination of factors attributed to the outcome of this case, but the most important thing appears to be adhering to your internal disciplinary procedure and taking 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 employed and self-employed staff during this difficult time.

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