In the past few weeks, several large businesses have announced plans to cut full sick pay for unvaccinated isolating staff. This is to combat the huge rise in absences that employers are facing and encourage people to get vaccinated. Self-isolation rules are most stringent for those who are not fully vaccinated (three doses) and they must self-isolate for 10 days.
The move by certain employers will mean that someone who is unvaccinated or not fully vaccinated (and is not medically exempt) will only be paid statutory sick pay when required to self-isolate. However, so far the businesses who have announced these plans have said they will continue to pay full sick pay to unvaccinated workers if they test positive for the virus.
Mandatory vaccination is a sensitive topic. The move by the UK government to make COVID-19 vaccination mandatory for health and social care workers has generated a lot of discussion around the issue and, in particular, the effect this will have on the workplace and employment issues. In the last week, the Royal College of GPs has called for the deadline for health workers to have a COVID-19 vaccination to be delayed to prevent further staff shortages in England. Martin Marshall, chairman of the Royal College of GPs, said compulsory vaccination was “not the right way forward”. So far, the Scottish government has made no similar proposals to make vaccination mandatory for any sector.
However, a recent case in the Employment Tribunal (ET) found that a care home worker who had been dismissed for refusing to be vaccinated was fair. In Ms C Allette v Scarsdale Grange Nursing Home Limited, it was found that when the issue over vaccination first arose the claimant only cited fears around the safety of the vaccine. It was only later when the matter proceeded to a disciplinary hearing that Ms Allette said that her religious beliefs as a Rastafarian had prevented her from having the vaccine.
The ET concluded that “the claimant’s refusal to be vaccinated was an unreasonable refusal to comply with a reasonable management instruction.” The ET found that the reason for refusal was fear and scepticism around the vaccine, and not her religious beliefs. The result was that her choice, having created a risk to others, amounted to gross misconduct and was therefore a repudiatory breach of her contract of employment with the respondent. The respondent was therefore entitled to summarily dismiss her.
It is likely there will be similar cases brought before the ET in coming months. The focus will be on whether the facts and circumstances of the case mean the refusal to be vaccinated amounts to gross misconduct. In the case above, the claimant had changed her reasoning for why she was refusing the vaccine. The outcome may have been different had she expressed genuine religious beliefs for not receiving the vaccine.
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COVID-19 vaccination is likely to be a live issue in employment law over the coming months. In addition to considerations around mandatory vaccination policies, employers may also be considering variations to employment contracts and should also be aware of discrimination risks associated with any mandatory policy introduction. Our employment law team are here and ready to help.
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