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You will be aware that it is a mandatory requirement for care home workers to be fully vaccinated against COVID-19. It will also become mandatory for frontline NHS England staff and staff working in organisations registered with the Care Quality Commission to be fully vaccinated from 1 April 2022.

This leaves many organisations and job roles where COVID-19 vaccinations are voluntary and not legally mandated. However, some companies are placing a growing pressure on employees and workers to be fully vaccinated.

Following the outcome of a recent employment tribunal, our Employment team outline the factors for employers to consider when making decisions regarding unvaccinated employees.

Employer incentives for COVID-19 vaccinations

For some time now, some companies have offered incentives for employees to be fully vaccinated against COVID-19. These incentives have taken the form of additional time off or even bonus payments.

More recently, some employers have decided to refuse to pay discretionary contractual sick pay if an unvaccinated employee is unable to work due to having COVID-19. In these instances only statutory sick pay, which is currently £96.35 per week, will be paid to the individual. This position has been adopted by employers such as IKEA, Next and Wm Morrisons in an attempt to encourage staff to be fully vaccinated.

Not all employers support these kind of incentives and on 24 January 2022, retailer John Lewis announced that they would not be cutting sick pay for unvaccinated staff who are required to take sick leave as a result of COVID-19.

Fair dismissal for refusal to be vaccinated

With a small minority of the eligible UK population refusing to have the COVID-19 vaccinations, can an employer take additional steps and fairly dismiss an employee who is not fully vaccinated when there is no legal requirement to be vaccinated in that role?

In the recent matter of Allette v Scarsdale Grange Nursing Home Ltd an employment tribunal held that, yes, it was fair to dismiss an employee who refused to be vaccinated. It is important to note that this is one of the first cases to be decided on this point and that this case is not binding authority. Each individual matter will be decided on their own specific facts, however, this case will be used as guidance for other employment tribunal decisions and it is an important case for employers and employees to be aware of.

At the time that the employee was dismissed there was no legal requirement for her to be vaccinated against COVID-19. The employee was not medically exempt from receiving the COVID-19 vaccination and the employment tribunal found that she had no clinical basis for refusing the vaccination.

The employment tribunal found that the dismissal of the employee for refusing the COVID-19 vaccination was fair. This was on the basis that the care home’s requirement for employees to be vaccinated was a justified means of achieving the legitimate aims of both safeguarding its vulnerable residents and complying with its insurance requirements.

Factors for employers to consider

It is recognised that employers will need to make some difficult decisions in relation to employees and COVID-19 vaccinations regardless of whether there is a mandatory vaccination requirement for the role.

Employees may be medically exempt of have other reasons for their refusal. Some reasons may be related to a protected characteristic; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Employers should engage in meaningful conversations with employees who may be refusing to be fully vaccinated and understand their concerns and reasons. The conversations should be fully documented.

If an employer is considering dismissing an employee as a result of not being fully vaccinated, in addition to having the above conversations, they will need to consider the reason why vaccination is a requirement for the role and what legitimate aim the company is seeking to achieve.

The employer should follow a full and fair process before the decision to dismiss an employee is made to seek to minimise the risk of a successful claim for unfair dismissal and/or discrimination.

If you require assistance or advice in relation to COVID-19 vaccinations in the workplace, dismissal or employment law generally, please contact either Nick Smith or Laura Liddle of the Mincoffs Solicitors Employment Team, or complete the enquiry form below.

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