Employment Tribunal due to vaccination refusal

Employment Tribunal has held that the refusal by an employee to be vaccinated amounted to a failure to comply with a reasonable management instruction, justifying a dismissal on the grounds of conduct.  

In the case of Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that dismissal of a care home employee for refusing to be vaccinated against Covid-19 in January 2021 was fair. 

The Tribunal accepted that although the employee had a genuine fear and skepticism of the vaccine that (1) the requirement to be vaccinated was a reasonable management instruction and (2) She had no medical/clinical basis for refusing.

Background

The Claimant had worked as a Care Assistant from December 2007 in a small nursing home providing residential care for dementia sufferers. In December 2020, the roll out of the Covid-19 vaccine to nursing home residents and staff was due to begin following a Government announcement. The care home suffered an outbreak of Covid-19 when 33 staff, including the Claimant, were infected.

At this stage, there was no statutory obligation on care home workers to be vaccinated. However, the care home decided to make it a condition of continued employment for workers to have the jab. The Claimant only became aware of this requirement the day before she was due to be vaccinated. She did not wish to be vaccinated and explained her reasons in a call with a Director who noted her reasons for refusal as being:  

(1) She did not trust the vaccine’s safety.

(2) It had been rushed through without extensive testing.

(3) She and her son had read stories on the internet about a Government conspiracy.

(4) No one could guarantee that it was safe.

Disciplinary Hearing and Dismissal

Due to the Claimant’s refusal to have the vaccine, she was invited to a disciplinary hearing which took place on the 28 January 2021 for failure to follow a reasonable management instruction.   In the disciplinary meeting, the Claimant indicated for the first time that she had a religious objection to the vaccine based on her Rastafarianism which the care home had been unaware of.

The Claimant was informed that the care home’s insurers would not provide public liability insurance for Covid related risks after 21 March 2021 and that the care home would be faced with the risk of liability should unvaccinated staff be found to have infected a resident or visitor.

Following the hearing, the care home concluded that the Claimant did not have a reasonable excuse for refusing the vaccine and that, if she remained unvaccinated, she would pose a real risk to the health of residents, other staff and visitors.

The care home did not believe the Claimant’s suggestion that she objected to the vaccine on religious grounds and her employment was terminated for failing to follow a reasonable management instruction.

Employment Tribunal’s Decision

The Claimant’s claims for unfair and wrongful dismissal failed because:

• Although the Claimant had argued for a right to respect for her private life pursuant to Article 8 of the European Convention on Human Rights (ECHR), the Tribunal accepted that the care home had the key legitimate aim of protecting the health of residents, staff and visitors and a secondary aim of not risking breaching its insurance policy.
• The mandatory vaccination policy corresponded to pressing social need for reducing risk to its residents who were no doubt vulnerable to severe illness or death.
• The Tribunal accepted the Claimant’s fear and scepticism about the vaccine as being genuine, but held it was unreasonable in the circumstances as she had no medical authority or clinical basis for not having the vaccine.
• The care home was a small employer with an obligation to protect its vulnerable residents.
• The Tribunal accepted that the decision to bring in a policy of compulsory vaccinations in January 2021 had been guided by the more limited state of knowledge about vaccines and the progress of the pandemic at the time.
• Taking into account the nature of the care home’s business and the vulnerability of its residents, the interference with the Claimant’s private life was proportionate.
• It was found to be reasonable for the care home to conclude that an employee who was simply sceptical of the official advice did not have a reasonable excuse for refusing to follow management instruction to have the vaccine.
• The Director genuinely did not believe that refusal related to religious belief. The Director had also referred the Claimant to information from Public Health England (PHE) and the Government.
• It was also accepted that at the time that the decision was made, the advice from PHE was that it was possible to contract and transmit the virus more than once and there was evidence of this despite the Claimant having already recovered from Covid-19 and arguing that she possessed natural immunity so there would be no benefit to having the vaccine.

This case provides useful guidance for employers but it should be noted that it was based on the law and the information available about Covid-19 and the vaccine at the relevant time.  Undoubtedly, more cases will follow.  

Since this case was heard, the Covid-19 restrictions have changed and the virus itself has changed with the impact of the vaccination programme.   It remains important for employers to treat every case on its own facts and that disciplining or even dismissing an employee for failing to be vaccinated is not without risk, especially for employers outside of the health and social care sectors.

This case does not give a green light to employers to dismiss employees who refuse to have the vaccine and dismissal processes and procedures will have to be followed and it is always recommended to take early legal advice to minimise the risks of claims by employees for unfair dismissal or discrimination due to a dismissal in these circumstances.