The simple answer is yes, in theory, you can. However, each case will depend on the specific circumstances including the reasons for the employee refusing to have the vaccination and the nature of the employer’s business. There has been a recent decision in the Employment Tribunal involving a care home employee who refused to have the vaccination and was subsequently dismissed by the Nursing Home. This care worker was scared of the vaccine, she said she didn’t trust that it was safe. However, the care home suffered from an outbreak of the virus and 33 staff and 22 residents were infected. Sadly, there were also a number of deaths. The Care Home required all of its staff to be vaccinated in December 2020 / January 2021. At that time, there was no legal requirement for care home workers to have the vaccination.
As this person refused to have the vaccination she was invited to a disciplinary hearing. At the hearing she told the panel, for the first time, that she was a Rastafarian and that she had a religious objection to the vaccine. It was explained to her that the home’s insurers were making it a condition of the public liability insurance that all workers were vaccinated and that any workers who refused to have the vaccination would leave them exposed and not insured for any liability (for example, if the unvaccinated worker passed the virus on to a resident or a colleague). After the hearing, the manager took the decision to dismiss the worker for refusing to follow a reasonable management instruction.
The dismissed care worker then took a claim in the Employment Tribunal for unfair and wrongful dismissal. The Tribunal rejected both of these claims and concluded that the dismissal fell within the band of a reasonable response to the Claimant’s position. When reaching this decision the Tribunal took into consideration the Claimant’s reasons for refusing to have the vaccination, what information was available at the time regarding the safety of the vaccine and the nature of the employer’s business.
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