On 31 January 2022, the government announced its intention to revoke the regulations which required care workers and front-line NHS employees to be vaccinated.
How has the care sector already been affected?
It is estimated around 40,000 care workers have lost their jobs for not being vaccinated in accordance with the regulations.
Will sacked employees in the care sector be able to claim unfair dismissal?
Yes. If an employee has at least 2 years’ continuous service, they will be able to submit a claim for unfair dismissal in the Employment Tribunal.
Could they bring any other claims?
Yes. It is possible that discrimination claims could also be pursued. This may be an option for employees with less than two years’ service as there is no minimum length of service required in order to bring a discrimination claim. The right to bring a discrimination claim also applies to the wider category of ‘worker’ rather than just ‘employees’ meaning that casual staff could also bring a claim.
What is the time limit for issuing these claims?
The time limit for pursuing an unfair dismissal is 3 months less 1 day from the effective date of termination, so some employees may still be in time to claim. The time limit for a discrimination claim is 3 months less 1 day from the date of the alleged discriminatory act, or the date of the last discriminatory act, if a continuing act of discrimination is alleged. These time limits will be extended to reflect the time taken up through ACAS Early Conciliation which can be as much as six weeks.
What are the prospects of such claims succeeding?
If the employer can show that they have acted in compliance with the statutory restrictions in place at the time and that they followed a fair procedure in accordance with Government guidance, it is difficult to see how the claims will succeed. However, if redeployment opportunities were ignored or an exemption not taken into account it might lead to a finding in favour of the employee.
Does the employee have to be rehired if they apply for their job back?
No. There is no requirement for an employer to offer reinstatement.
If former staff members make contact to request re-employment, the employer may wish to engage in discussions if they have a vacancy. It will be important that any decision regarding an application to be rehired is made on merit, or it could give grounds for a discrimination claim.
The same principle also applies to anyone that was redeployed into another position and requests to move back into their previous role. If an employer wants to re-employ former staff, we recommend in the first instance approaching them to discuss the vacancy available.
If the employer does rehire, will the employee have continuity of service?
No. Continuous service would have been broken. The staff member would commence employment as a new starter with no previous length of service counted for statutory purposes. The employer would still be free to offer terms to the returning employee to reflect their previous service though.
Could this impact the right of other employers to insist on Covid vaccinations?
Yes. This is likely to make it more difficult to justify such a requirement. It will depend on the particular circumstances of the role. However, there will be arguments that other steps could be taken to protect health and safety that are more proportionate given that some will not be able to have the vaccine for good reason.