The Government Covid Vaccination Scheme is, for many, a positive step on the way out of lockdown. However, it can cause difficulties and problems for employees if your employer is requiring you to have a Covid-19 vaccine. If you are dismissed because you have refused the Covid-19 vaccination, there may be potential employment law claims available to you. Please read on for further information.
Can I Claim Unfair Dismissal If My Employer Has Dismissed Me For Refusing To Have The Covid-19 Vaccination?
If you have been dismissed because of a refusal to have the Covid-19 vaccination, an assessment will need to be undertaken as to whether the actions of your employer where reasonable and justified.
An employer can dismiss an employee under the heading of ‘Some Other Substantial Reason’. Any dismissal based upon a refusal to have a vaccine will likely be under this heading. It is important to note that dismissal for this reason should be with notice.
For a ‘Some Other Substantial Reason’ dismissal to be lawful, the decision and the process taken by your employer must be reasonable. A failure by your employer to follow a reasonable procedure may mean that you have a claim for Unfair Dismissal.
When looking at whether a dismissal has been lawful or unlawful several considerations must be taken.
- Length of Service
The first element to look at in any dismissal, is whether you have the necessary length of service to be able to bring a claim for unfair dismissal. The general rule is that you must have two years’ service There are some exceptions to this rule, including if the vaccine would put you at a health and safety risk which are discussed in our blog https://lincslaw.co.uk/blog/unfairly-dismissed-less-than-two-years-service/
- What Industry Do you Work In?
Once it is established that you are eligible to bring an Unfair Dismissal claim, the next consideration would be to look at the industry you work in to establish if it is reasonable and justifiable for your employer to require you to have the Covid-19 vaccination.
Industries which are client facing, or in particular deal with vulnerable persons, may have a justifiable reason to require employees to have the vaccination. However, each case and industry will need to be individually looked at and assessed. Each individual case will depend on its own specific factors.
- What Information Was Provided to You?
If you were dismissed because your employer gave you a manager instruction to have the Covid-19 vaccination and you refused, the next consideration would be whether you were provided with relevant information in respect of this management instruction.
When looking at this point, the following question should be asked:
- Were you given reasonable notice between receiving the management instruction and the subsequent dismissal?
- Was there a period of consultation in which you could discuss with your employer your concerns in respect of the management instruction?
- Was sufficient information given you to as to the reason why your employer was imposing a requirement to have the Covid-19 vaccination?
- Were Alternatives Discussed?
As part of the consultation process, a reasonable employer should also consider and discuss any alternatives that are available.
For example, can your duties or role be changed so you are no longer client facing, or have reduced interaction with customers? Alternatively, is it possible to maintain social distancing measures in place at the workplace?
A reasonable employer following a reasonable procedure must be able to show that they have genuinely considered any reasonable alternatives open to them. Failure to genuinely consider these alternative options may render their ultimate decision unlawful.
The above are general consideration that should be looked at when considering if a dismissal is lawful or unlawful. It will be fact specific, and the outcome will like depend on a case by case assessment.
Can I bring a Claim for Discrimination if I am Dismissed for Refusing a Covid-19 Vaccine?
A claim for discrimination is different to a claim for unfair dismissal.
The first difference is that there is no length of service requirement to bring a discrimination claim. This type of claim is open to all employees.
The second difference is that the discrimination must relate to a protected characteristic. To have a success claim for discrimination you must be able to show that your employer treated you less favourable than others because of your protected characteristic.
The relevant protected characteristics are:
- Age
- Sex
- Disability
- Race
- Religion
- Sexual Orientation
- Pregnancy
If you are dismissed, or receive a detriment, for refusing to have a Covid-19 vaccination, then there is the potential to bring a claim of discrimination, if your refusal to have the vaccination was based upon a protected characteristic.
For example:
- Disability Discrimination: If an employee has a particular disability which means they are unable to have, or ineligible for, the vaccine.
- Pregnancy Discrimination: a pregnant employee who is advised not to have the vaccine during her pregnancy
- Religion or Belief Discrimination: If an employee has a religion or belief which prohibits them for accepting vaccines or medical assistance.
Please note that being dismissed or receiving a detriment because you refused to have a Covid-19 vaccination will not automatically be discriminatory. It will be very fact specific and will vary from case to case depending on your personal circumstances as well as the industry that you work in and the actions of your employer. It is therefore important that independent legal advice is taken if you have any concerns relating to discrimination at work.
Employment Tribunal Claims and Time Limits
If you want to issue a claim of unfair dismissal or discrimination against your employer, there are strict timescales which you must comply with. You must commence ACAS Early Conciliation within 3 months less one day from the date of dismissal or last act of discrimination you are claiming.
ACAS Early Conciliation is a mandatory process that all potential litigants must go through before they can bring a claim to the Employment Tribunal. The aim of ACAS is to try and resolve the dispute between you and your employer without the need for further claims to be brought in the Employment Tribunal. If you are unable to resolve your dispute through ACAS Early Conciliation you will then be able to proceed to the Employment Tribunal.
Lincs Law Employment Solicitors Can Help You
If you would like to further advice on unfair dismissal or discrimination, please do not hesitate to contact us for a no obligation, free consultation please call on 01522 440512. For more information on the services we offer, please visit our website: https://lincslaw.co.uk/services/employees/
Jasmine Stewart
Specialist Employment Solicitor
Lincs Law Employment Solicitors
Tags: COVID-19 COVID-19 at work Discrimination discrimination at work dismissal employment law lincslaw employment solicitors unfair dismissal