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Landmark ruling in Covid jab for work case as opposition intensifies.

Published 25 January 2022

A nurse believed to be the first employee to legally challenge the ‘no jab, no job’ policy lost her case as antagonism towards mandatory vaccines for NHS staff continues to grow.

 

Anyone working or volunteering in a care home was required to be fully vaccinated against coronavirus (Covid-19) by 11 November 2021 unless exempt [1 cited 25.1.22]

 

It was predicted it would lead to tens of thousands of care home staff losing their jobs   [2 cited 25.1.22]

 

A care home nurse who was sacked for refusing to be vaccinated has now lost her employment tribunal case.  It is thought to be the first case of its kind.

Cheeryn Allette initially refused to have the jab because she was concerned it was unsafe. She also argued it was against her Rastafarian beliefs. 

Ms Allette, who had worked for her employer for 13 years, lost her wrongful dismissal claim after she was dismissed in January 2021. It was 10 months before vaccines were made compulsory for care home workers [3 cited 25.1.22]

Judge Bright is said to have ruled Ms Allette’s “refusal to be vaccinated was an unreasonable refusal to comply with a reasonable management instruction”.

“Her reason was her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than religious belief,” the report added.

“I find, that in particular because she knew she represented a risk to others, her actions fell within the definition and examples of gross misconduct set out in the respondent’s disciplinary policy.”

News of the case comes amid growing opposition to the mandatory vaccination policy due to be extended in April to all patient-facing health and care workers, including those in the NHS.

It is reported that more than 70,000 unvaccinated NHS staff will need to get the jab or risk losing their job after the government announced Covid-19 jabs would be compulsory for NHS England workers [4 cited 25.1.22]

NHS staff must have a first jab by 3 February and be fully vaccinated by 1 April to continue in frontline roles.

In the face of strong opposition it was reported the government was considering temporarily suspending the policy [5 cited 25.1.22]

However, The Department of Health is reported to have said there were no plans to delay and it was ‘the right thing to do to protect patients’.

Thousands of NHS workers who oppose the mandatory vaccination policy have staged large protests in central London, Manchester, Birmingham and Leeds [6 cited 25.1.22]

The rules requiring staff to be vaccinated are currently different for those who do not work in a care home or for the NHS.

Workers in other sectors can certainly be encouraged by their employer to be vaccinated, but they cannot be compelled to have the jab if they do not want it.

ACAS has published guidance for employers on the matter [7 cited 25.1.22]. The advice is:

If an employer wants staff to be vaccinated

It's best to support staff to get the vaccine without forcing them to.

If an employer feels it's important for staff to be vaccinated, they should talk together with staff or the organisation's recognised trade union to discuss what steps to take.

Any decision after that discussion should be put in writing, for example in a workplace policy. It must also be in line with the organisation's existing disciplinary and grievance policy and follow discrimination law.

It’s a good idea for the employer to get legal advice before bringing in a vaccine policy.

If someone does not want the vaccine

If someone does not want to be vaccinated, the employer should listen to their concerns.

Some people may have health reasons, for example if they will have an allergic reaction to the vaccine.

Employers should be sensitive towards personal situations and must keep any concerns confidential. They must be careful to avoid discrimination.

If someone is concerned about their health and the vaccine, they should talk to their doctor.

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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