Since 11 November 2021, workers in Care Quality Commission (CQC) regulated care homes in England must be vaccinated against Covid-19 unless they are exempt.
Following this, mandatory vaccination was extended to workers in the health and social care sector who have face-to-face contact with service users, from 1 April 2022. Affected workers would need to have had the first dose of the Covid-19 vaccination by 3 February 2022 in order to meet this deadline, with NHS guidance on mandatory vaccinations for healthcare workers advising that notice of termination could be given to employees who remain unvaccinated after that date.
However, the government has seemingly backtracked on this decision due to statutory mandatory vaccination no longer being proportionate in the face of greater public protection from the virus, reduced severity of the Omricon strain compared to Delta, and in light of the existing NHS staffing crisis. On 31 January 2021, the Secretary of State for Health and Social Care, Sajid Javid, announced the government’s intention to revoke both sets of regulations relating to mandatory vaccination in the health and social care sector and care homes, subject to a two-week statutory consultation and parliamentary approval. As a result of this, NHS leaders have sent a letter to NHS employers requesting that they do not serve notice of termination on unvaccinated employees.
This will no doubt come as a relief to these sectors which are already struggling to bring in and retain staff for a variety of reasons.
However, it will still be extremely important for some employers that staff is vaccinated, especially if those workers are working with vulnerable people who are at risk of serious illness or death should they contract the virus. Now that the statutory regime is being removed, employers might be placed in a predicament whereby it is considering the dismissal of a member of staff for failing to have the vaccine but is unsure whether it will stand legally if this action is taken.
The Employment Tribunal has recently heard the case of Allette v Scarsdale Grange Nursing Home Ltd, in which Ms. Allette was employed as a care assistant from December 2007 until her dismissal on 1 February 2021.
In December 2020, Scarsdale Grange Nursing Home was hit with an outbreak of Covid-19 which resulted in 33 staff, including Ms. Allette, and 22 residents contracting the illness within 10 days. There were a number of deaths among residents and around half of the workforce were required to self-isolate. The care home had scheduled for staff to have their first vaccinations on 22nd December 2020 however this was postponed due to the outbreak until January 2021.
When the vaccinations were rescheduled, Ms. Allette refused to have them. She told her employer that she had a lack of trust in the vaccine, that nobody could guarantee its safety, and that she had read stories about government conspiracy.
Despite there being nothing in Ms. Allette’s contract of employment about compulsory vaccination or in the disciplinary policy about vaccination refusal, she was disciplined for refusing to have the vaccination. The care home explained to Ms. Allette that its insurers might not provide public liability insurance after March 2021 if unvaccinated staff passed the disease onto residents.
At the disciplinary hearing, Ms. Allette argued that she had refused the vaccination because she was Rastafarian and her religious beliefs prevented her from being vaccinated. She had not mentioned this before the hearing.
Ms. Allette was summarily dismissed for gross misconduct for failing to follow a reasonable management instruction to be vaccinated. She appealed unsuccessfully and then brought a claim for unfair and wrongful dismissal.
The Tribunal rejected the claims and found that the dismissal was fair and proportionate in the circumstances.
Interestingly, the dismissal occurred before mandatory vaccination had been brought in by the government. Of course, each case will be decided on its own facts however this case does demonstrate that employers are likely to have some degree of discretion in dismissing employees if they refuse vaccination, in particular, if it can provide reasoning such as issues with insurance should staff not be vaccinated. It is advisable to seek legal advice before dismissing a member of staff for refusal to have the vaccination.
If you have any queries regarding mandatory vaccination, please do not hesitate to contact a member of the employment team at Glaisyers ETL, email@example.com