Facts of the case
‘A’ was a care home worker in a nursing home providing residential care for dementia sufferers, SGNH, which made COVID-19 vaccinations a condition of continued employment.
‘A’ refused to have the vaccine (for reasons that it was not safe and had not been tested thoroughly enough). In a disciplinary hearing, she also revealed that her Rastafarianism meant she had a religious ground for refusing the vaccine. SGNH decided that A did not have a reasonable excuse for refusing the vaccine. A claimed unfair and wrongful dismissal as a result of the dismissal.
The ET rejected both claims. The Tribunal accepted that SGNH had a primary legitimate aim to protect the health of its staff, residents and visitors, and a secondary aim to not breach their insurance policy.
The ET also ruled that A was not genuinely refusing to have the vaccine on religious grounds, and that it was reasonable for SGNH to conclude that an employee who was merely sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine.
The ET also decided that although there was interference with A’s Article 8 Human Rights Convention right (right to respect for her private life) in requiring A to have the vaccine, this was justified as the Article 8 rights of the residents and other staff and visitors were unjustly interfered with by the presence and risk of A being unvaccinated.
What effect does this ruling have?
The tribunal ruling in this case may have a huge effect on industries where the COVID-19 vaccine is not currently compulsory, but where staff come into close contact with others, or where there may be a business need to introduce these measures.
This may include non-CQC regulated care workers, hospitality workers, teachers or companies with an insurance policy which may not indemnify businesses against claims from visitors or employees who catch COVID-19 and become seriously ill or worse, die, because they have not been protected from infection with sufficient measures such as mandatory vaccines.
The decision is a useful first look at how ETs may deal with claims related to compulsory vaccinations (including where there is no legal mandate) and the relevance of the Convention rights.
What do employers need to consider?
While this ruling will undoubtedly pave the way for similar cases appearing in the ET, employers will need to be aware of the following:
- Unfair dismissal claims – employers will need to show that it was a reasonable request to mandate vaccinations (e.g. as per the case above, there were vulnerable residents to protect);
- If undue pressure is placed on unvaccinated employees, there may be a claim for constructive dismissal or workplace bullying;
- Whether alternatives can be utilised effectively to replace any requirement for mandatory vaccinations (PPE, social distancing, regular testing)
- The impact loss of staff may have for the company; is the company going to be able to recruit trained and vaccinated staff to replace those who have been dismissed?; and
- The role of GDPR - asking for employees’ vaccination status will fall within the scope of GDPR as vaccination status is special category data. Employers will therefore need to be fair and open with how they ask for and process data, for no longer than is really necessary to deal with public and employee health protection.
Nick Hobden is employment lawyer at Thomson Snell & Passmore