In one of the first Employment Tribunal cases to consider the fairness of a dismissal for refusing to be vaccinated,  it was held that the summary dismissal of a care assistant employed in a nursing home for unreasonably refusing to be vaccinated against COVID-19 was fair. 

 

In the context of the state of the pandemic in January 2021, a small nursing home's decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was held to be a reasonable management instruction. The care assistant's refusal to be vaccinated due to concerns about the safety of the vaccine was not reasonable in circumstances where there had been a very recent outbreak and deaths of residents at the nursing home, the pandemic was growing nationally and there was widespread publicity and advice about vaccine safety. 

 

Whilst the Tribunal accepted that an employer's instruction that an employee must be vaccinated interferes with the employee's physical integrity in a manner capable of engaging Article 8 of the European Convention on Human Rights (ECHR), it considered that the employer's aims (of protecting the health and safety of the residents, staff and visitors to the care home during the pandemic and protecting itself against the increased likelihood of claims due to the withdrawal of insurance cover if staff members were unvaccinated) were legitimate.

 

The Tribunal held that it was within the range of reasonable responses for the employer to conclude that the refusal was due to scepticism of the vaccine and not due to religious beliefs, as had been raised at the disciplinary hearing. In the context of the recent outbreak and deaths at the nursing home, and the urgency with which measures to protect the vulnerable residents needed to be put in place, refusing to comply with the management instruction to be vaccinated amounted to gross misconduct and the dismissal was neither unfair nor wrongful.

Whilst each case turns on its fact, this Employment Tribunal judgment suggests that there may be little sympathy from the judiciary for those claimants who lose their jobs due to a refusal to be vaccinated, particularly in those industries where mandatory vaccination will be a condition of employment from 1 April 2022.