In the latest HR Blog from Stephensons the team consider the question “Can I dismiss a member of staff who refuses to be vaccinated against Covid-19?”
From 11 November 2021, it became compulsory for those working or volunteering in a care home in England to be fully vaccinated against Covid-19, unless exempt. Those who are not exempt and choose not to get vaccinated could face dismissal if their employer is unable to identify suitable alternative employment for them. The government’s decision to introduce a mandatory care home vaccination policy is currently the subject of a legal challenge in the courts.
From Spring 2022 it will also be mandatory for all health and social care workers, including volunteers who have face to face contact with service users, to evidence they have been fully vaccinated in order to be deployed.
The government’s decision to make vaccination compulsory in these sectors puts those relevant employers in a stronger position, but what approach should those in other industries take?
It is important to consider the facts of each case; in particular, the reason why the employee does not wish to be vaccinated. If the decision is due to an underlying health condition, or on religious grounds, the employer risks discriminating against that employee, if it chooses to dismiss them.
Generally speaking, in circumstances where an employee unreasonably refuses to follow an employer’s reasonable instruction, this can lead to disciplinary processes and dismissal. Whether instructing an employee to have a Covid-19 vaccine is reasonable has not yet been tested in the courts and therefore employers should exercise caution before considering dismissal, as claims for discrimination and unfair/constructive unfair dismissal could ensue.
Whether or not the employee has acted unreasonably in refusing to be vaccinated depends on the circumstances of the employee and their reasons for refusing the vaccination. An unreasonable refusal by the employee may justify disciplinary action as the employee has, at the very least, an implied duty to act in the best interests of the employer, colleagues alongside consideration to their health and safety.
As an alternative to disciplinary action, employers may wish to consider the following:
- Adopting a vaccination policy – this can help explain the benefits of vaccination and counteract misinformation surrounding the vaccination, however, employers should consider whether the policy also applies to third parties who may attend the workplace
- Reviewing employment contracts – employers must not enforce a change without the employee’s consent as this could result in claims for breach of contract and constructive unfair dismissal claims being pursued
- Consider incentives for having the vaccination – employers must ensure they do not discriminate against staff who have reasons for not having the vaccination (i.e. age, disability or belief)
- Recruitment – employers may consider making vaccination a condition of employment, however, employers must exercise caution not to discriminate.
Before making any substantive decisions in response to an employee’s refusal to be vaccinated, employers should seek independent legal advice in order to reduce the risk of timely and costly litigation.