So, where employees refuse to be vaccinated (for reasons others than clinical reasons) and are dismissed, will they have any claims against their employer? Employees with a minimum of two years’ service have the right to bring a claim of unfair dismissal. However, where an employee is dismissed in compliance with the Regulations as amended, provided a fair process is followed by the employer and assuming there are no alternative roles available outside of the care home setting, it seems inevitable that the dismissal will be deemed to be fair.
Employees may seek to pursue a claim of indirect discrimination if their reason for refusing to be vaccinated amounts to a protected characteristic under the Equality Act 2010 e.g. if their refusal is for religious reasons or because of concerns about being vaccinated when pregnant. However, in such claims, discrimination can be justified where the discriminatory act is shown to be a proportionate means of achieving a legitimate aim and, where dismissal takes place in compliance with UK law in circumstances where no alternative work is available outside of the care home. In such circumstances, it appears unlikely that a tribunal would find the dismissal to be discriminatory, as any such finding would undermine the purpose of the Regulations.
It is important to note that the Regulations as amended will only have effect in England. Therefore, whilst care homes in Scotland and Wales, or indeed other care providers will not be covered by the Regulations, they may still choose to follow suit and dismiss non-vaccinated employees. If so, they would be at greater risk of a finding that any such dismissal was discriminatory and/or unfair, particularly if they choose to apply a blanket policy all staff irrespective of the level of their contact with elderly residents.
If an employer is able to take measures to ensure that a non-vaccinated individual does not work with or come into contact with elderly and vulnerable adults residing at the home, a tribunal may find that dismissal could have been avoided and is therefore unfair. It will be interesting to see what regard, if any, courts and tribunals in Scotland and Wales have to the Regulations and their application in England when considering such claims, particularly in the case of employers who may have care homes in both, for example, England and Wales.