A Leeds Employment Tribunal has held that a care home assistant disobeyed a lawful management instruction by refusing to be vaccinated against COVID-19 and, in consequence, was fairly dismissed.

Facts

The employer operated a nursing home providing residential care to dementia sufferers. In December 2020, the Government began the roll out of COVID-19 vaccines to care homes. The employer arranged for its staff to be vaccinated in late December 2020, but the vaccines were cancelled shortly before they were due to be administered due to a COVID-19 outbreak in the home which resulted in staff (including the claimant) and residents contracting the illness. A number of residents died as a result of this outbreak.

At the time, the Government had not implemented its policy of mandatory vaccination for care home workers, but the employer decided to make it compulsory and re-scheduled vaccinations for its staff members for January 2021. The claimant refused to be vaccinated, initially indicating concerns about safety and later referring to vaccination being against her Rastafarian beliefs. The claimant was disciplined and dismissed for refusing to follow a reasonable management instruction to have the vaccine.

During the disciplinary hearing, the employer explained to the claimant that its insurers would not provide insurance for COVID-19 related risks from March 2021 if unvaccinated staff infected residents and that a similar position could arise in relation to its employer’s liability insurance. The employer held a genuine belief that, being unvaccinated, the claimant would pose a real risk to the health and lives of residents, staff and visitors to the home. The claimant was offered a further opportunity to have the vaccine before her dismissal was implemented, but did not do so. Her internal appeal was unsuccessful and she brought Employment Tribunal proceedings for unfair and wrongful dismissal. She did not pursue a claim for religious discrimination.

Decision

The Employment Tribunal dismissed both the unfair and the wrongful dismissal claims. Specific points of interest decided by the Tribunal were that –

  • In the circumstances which existed at the time (including the state of the pandemic nationally and the consequences of the outbreak in the nursing home in December 2020), the employer’s decision to make vaccination mandatory for staff who gave close personal care to vulnerable residents corresponded to a pressing social need to reduce the risk to these individuals and was a reasonable management instruction;
  • The claimant’s refusal to follow her employer’s instruction to have the vaccine was gross insubordination/refusal to carry out legitimate instructions and a serious breach of the employer’s specific rule which required her not to take action which would threaten the health of others. Although the claimant was genuinely fearful of and sceptical about the vaccine, “relying on unidentified internet sources and believing there was a conspiracy about vaccination” did not make her refusal reasonable.
  • The claimant’s dismissal for refusing to have the vaccine fell within the ambit of Article 8 of the European Convention on Human Rights in that there was an interference with her right to respect for her private life. However, this interference was justified. The employer had legitimate aims in protecting the health and safety of its residents, staff and visitors during the COVID-19 pandemic and also in preserving its insurance cover. The claimant’s Article 8 rights had to be balanced against those of the vulnerable residents and having an unvaccinated person working in the home would be an unjustified interference with the residents’ rights.

In practice

This decision will undoubtedly be of interest to employers at a time when businesses are continuing to grapple with the operational and management challenges thrown up by the COVID-19 pandemic. So far as we are aware, this is the first published decision in relation to a dismissal for refusing an employer’s compulsory vaccine mandate and it is positive that the Employment Tribunal found in the employer’s favour.

That said, however, no employer should view this decision as a green light for the implementation of a compulsory vaccine mandate. A significant risk of compulsory vaccination is the potential for claims of disability, religious or pregnancy discrimination and none of those were pursued here. In addition, this decision is based on the specific facts of this case. Of particular relevance were that the employer’s business was the care of highly vulnerable individuals, that a number of residents had recently died of COVID-19 at the time the vaccine mandate decision was taken, the public health situation and advice at the time of the decision, and the risk to the employer’s insurance. As the Employment Tribunal itself pointed out, its decision “cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair”.