Care home worker who refused vaccination was fairly dismissed
A care assistant in a nursing home providing residential care for dementia sufferers was dismissed in December 2020, prior to the introduction of compulsory Covid-19 vaccination for workers in the care sector in England. The care assistant claimed unfair dismissal and wrongful dismissal.
Employment Judge, taking care to make plain that the decision was based entirely on the facts of the case and should not be taken as a general indication that dismissal for refusing to be vaccinated against Covid-19 is fair, set out that the refusal to be vaccinated was an unreasonable refusal to comply with a reasonable management instruction. The care assistant said her reason was due to fear of and scepticism about the vaccine, rather than religious belief. The judge found that in particular because she represented a risk to others, her actions fell within the definition and examples of gross misconduct set out in the employer’s disciplinary procedure. Her refusal to be vaccinated therefore amounted to a repudiatory breach of her contract of employment entitling the employer to summarily dismiss her.
It’s an interesting case, and a subject we are surely going to see more of as the cases reach the tribunals! Remember vaccination is not a legal requirement for any role at present apart from the Care sector in England – there is sure to be more developments on this subject.