I’ve been asked a number of times on twitter about whether it’s possible to sack your carer if they refuse the COVID-19 vaccine. Some thoughts on this below. As usual with law it’s not simple – certainly not a one line answer – but hopefully here are some useful pointers.
It’s weird to think that a little over a year ago the word Covid had never entered our vocabulary. Or bubbles, shielding, furlough, etc. It feels weird as if we are living in a completely different world. As a heart transplantee of almost 15 years, I have a deliberately suppressed immune system so I have been categorised as Clinically Extremely Vulnerable, a label that I do not identify with at all. The medication I take suppresses my ability to fend off infection so that my immune system does not quite literally eat my new heart because it is an alien organ. Too much information? This won’t be a problem in the future when patients can “grow their own” from stem cells with a bit of luck and a lot of medical miracles.
In the immediate aftermath of my transplant, I had a lot of restrictions on my normal day to day life. The lockdown has therefore for me been no particular hardship. Of course I don’t miss the 4 hour round-trip commute and the price of Pret sandwiches! Pre-transplant I was locked in for 18 months when suffering from heart failure. I’d been told that without a donor organ there was nothing more the doctors could do for me. I would wither away within 6 months or so. It’s taken 15 years for me to be even able to write this blog I can tell you!
A good day meant that I could get up and brush my teeth before getting back into bed. That was about all I could manage. I stopped eating (my favourite hobby) and spent a lot of time sorting my affairs just in case the worst should happen. Lockdown has not held the same mental challenges because rather than waiting for The Call that would save my life this time I have been looking forward to getting back into circulation and seeing my friends and family in real life. And sort of enjoying Zoom to at least see people for real. If I meet a stranger on my daily early dog walk they must wonder why I am so exuberant and chatty. It’s full-on people deprivation!
I digress. Where was I? Yes. Restrictions post-transplant. I was not allowed for the first 6 months to go to a supermarket, a cinema, anywhere with lots of children (any mother will tell you what little bug machines they are!). I had to use antibacterial gels non-stop. I could not use a shower (they are often infected with Legionnaire’s Disease). So, what I am getting at is that I entirely see where a clinically vulnerable person is coming from if they are being cared for or are using a PA who refuses the vaccine. It’s hard enough to know that if you get infected with Covid it might cause serious complications and even death. Why would you want someone coming into your home that might bring it right to your door?
The legal issue is when is it fair to dismiss someone and is it fair to dismiss someone for refusing the vaccine? The simple answer is that in some circumstances it can be a legitimate reason to dismiss your carer if they are putting your health/life at risk. That is a good enough reason to justify a dismissal decision. It is certainly a substantial reason in my view but how can you then avoid any legal repercussions?
It goes without saying that I would always advise that you talk to this person and try to persuade them of the merits of the vaccine in relation to you but also in relation to their health. But we all know that sometimes positions get entrenched and talk just doesn’t work.
If you are going to dismiss you need to think about a fair process. You need to consider the length of time your PA/carer has been employed by you. If it is more than two years they will have unfair dismissal rights that they can enforce in an Employment Tribunal. This can be a major hassle and very expensive. They might also have discrimination rights if their reason for not having the vaccine is connected to a protected characteristic giving them Equality Act rights. These rights have no qualifying period of service – they kick in from day one. Before in fact, during the hiring process and then again after the employment relationship terminates. You have to tread carefully.
There are a couple of things I recommend you think about:
- Try to reach an agreement if your carer won’t take the vaccine. Rather than firing them in an abrupt way let them know that you are going to have to let them go much as you don’t want to but that they will be paid for their notice period and any accrued holiday pay they are owed. This is so you avoid wrongful dismissal (essentially a claim for breach of the employment contract) but it will also help soften the blow. Your carer is entitled to one week’s notice pay per year of service up to a maximum of 12 years. If they have not taken all the holiday they are given that has to be paid too at their usual daily rate or you can in some circumstances ask that they use this leave (and be paid for it) during their notice period.
- Take advice from ACAS or from a lawyer before you take any steps to dismiss. They can point you in the right direction. ACAS can also help you conciliate with your PA/carer and try to find a solution. Some law firms including ours offer an initial call with a solicitor to point you in the right direction.
- Make sure you follow a fair process for the dismissal. You may think you have (and you may have) a good reason for dismissing but you need to be fair in how you deal with it. If you do this in line with the ACAS Code you won’t go far wrong. You can find it here.
This blog is not legal advice and is no substitute. Neither I nor my firm Didlaw take any responsibility for any decisions you make after reading it. If you need advice call and speak to one of our lawyers.
Sadly it seems that Covid-19 is here to stay at least for some time to come. We just have to be thankful that the tireless dedication of the medical profession has enabled a vaccine so quickly. We have to learn how to live safely alongside it. Stay safe people.
Finally it would be remiss of me not to say in this very personal blog that I owe a huge debt of gratitude to the NHS and all those who cared for me up to and during transplant and in the 15 years since. And my donor and his family whose incredible selfless gift is the reason I am sitting here writing this blog today. Thank you will never be enough.
This blog was written by Karen Jackson, Solicitor & MD of Didlaw.
