As confidence grows that we are heading for the COVID endgame, the fact is, there are still disputes occurring in the courts around COVID and the workplace. What isn’t advised, what is and best practice is continuing to evolve with clearer pictures being drawn with every decision made.
Recently a former care home assistant providing personal care to vulnerable residents, who refused the vaccination was found by a tribunal to have been fairly dismissed.
In December 2020 they were offered the vaccine (in line with government rollout to care workers and residents) which they refused. The vaccinations were subsequently postponed until mid-January due to a COVID outbreak in the home, sadly resulting in deaths among residents.
During a phone call with the Home Manager the employee listed their concerns about the vaccine and expressed a belief that the Government was lying about the safety of the vaccine. The Home Manager tried to reassure the person but warned that refusal to take the vaccine would result in suspension and disciplinary action. The care home assistant’s employment at the home stopped in February 2021.
They told the court that the taking of any non-natural medication would go against their religious beliefs, however the tribunal found that it was in fact a lack of trust in what the Manager or the Government were saying was the reason for refusing to take the vaccine. They based this decision in part on the Home Manager’s notes from the initial phone call, which the court deemed a more acceptable form of evidence than the person’s recollection.
Had there been legitimate medical reasons to refuse vaccination or had they explained from the beginning their refusal was down to religious beliefs the outcome may have been different. However the court’s ruling that the instruction to make vaccination mandatory was a “reasonable management instruction” meant that refusal amounted to gross misconduct.
This case may serve to encourage or entrench employer’s beliefs that mandatory vaccination policies could be introduced. However, it’s important to note that whilst this decision offers an indicator as to how other tribunals may approach cases around mandatory vaccinations in the workplace, it isn’t a hard and fast rule. Context played a big part and what is a “reasonable management instruction” in one scenario may not be in another.