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A tribunal has considered whether dismissal for refusing to have the vaccine was fair and in accordance with the terms of the contract of employment.
28 February 2022
Case Study
In the case of Allette -v- Scarsdale Grange Nursing Home Limited, the employment tribunal found the summary dismissal of a care assistant working in a residential care home who refused to have the COVID-19 vaccination to be fair.
Ms Allette was employed as a care assistant by Scarsdale Grange Nursing Home, a family run business providing residential care to dementia sufferers. She was employed from 03 December 2007 until her dismissal on 01 February 2021 and her role involved providing personal care to the home’s residents.
In December 2020, the UK Government announced the roll out of the COVID-19 vaccination programme to nursing home residents and health workers, with the aim of addressing the particular vulnerability of that sector. Scarsdale made arrangements for their staff to be vaccinated in late December 2020, but following a COVID-19 outbreak this was postponed until January 2021 (prior to the Government introducing mandatory vaccination for care home workers).
In any event, Ms Allette did not want to have the vaccine. During a call which took place between Ms Allette and the respondent on 12 January 2021, for which the respondent took a contemporaneous note, it had been made clear to Ms Allette that having the vaccine was a requirement for her to retain her role and that if she refused, she would be taken through a disciplinary process for failing to follow a reasonable management request. She in turn had said that she did not want the vaccine because she did not believe that it was safe as it had been “rushed through”. She referred to her and her son having read stories on the internet about the vaccine being a government conspiracy and made clear that nobody could guarantee its safety.
At a later disciplinary hearing it was explained to Ms Allette that the respondent’s insurers had said that they would not provide public liability insurance for COVID-19 related risks after March 2021. This meant that the home would face the risk of liability if unvaccinated staff were found to have passed COVID-19 on to residents or visitors. She tried to argue that as a practising Rastafarian, she objected to the vaccine on religious grounds and that she had made this clear to Scarsdale during initial conversations. Ms Allette asserted that she had referred to this during the call of 12 January 2021. However, following challenge from the respondent she accepted this was not true.
The respondent, having considered all the circumstances and the points raised by Ms Allette, took the view that they could not make an exception for one member of staff. Not all residents could be vaccinated due to vulnerabilities, the vaccine was not 100% effective and visitors might not be vaccinated, the respondent therefore believed it was vital for all staff to have the vaccine.
Case Study
Ms Allette brought claims in the tribunal for unfair dismissal and wrongful dismissal; however, ultimately, the tribunal found Ms Allette’s dismissal to be fair.
One of the issues considered by the tribunal was whether the dismissal breached Ms Allette’s right to respect for her private life under Article of the European Convention on Human Rights. The tribunal found that it did not. The respondent had a legitimate aim for requiring staff to have the vaccine and dismissing those staff who unreasonably refused to have it. All parties agreed there was a legitimate aim of protecting the health and safety of those within the home. Preventing the withdrawal of fundamental insurance cover was also found to be a legitimate aim. In contrast, Ms Allette had no medical authority or clinical basis for refusing to have the vaccine and therefore, on balance, the respondent’s decision to dismiss was proportionate.
The tribunal also found that the respondent acted within the range of reasonable responses open to an employer to take in the circumstances. In particular, the tribunal found that it was not outside the range of reasonable responses for an employer to reach the conclusion that an employee who was merely sceptical of and did not trust the vaccine, did not have a reasonable excuse for refusing to follow a management instruction to have the vaccine.
In terms of the claim for wrongful dismissal, the tribunal held that the respondent had not breached Ms Allette’s contract of employment. Whilst there was no express term of the contract of employment requiring Ms Allette to have the COVID-19 or any other vaccine, the tribunal found that in light of the circumstances surrounding COVID-19 at the time, the home’s request for staff providing close personal care to vulnerable residents amounted to a reasonable management instruction and that Ms Allette’s refusal to comply with that instruction was unreasonable. The respondent’s disciplinary policy listed “gross insubordination/refusal to carry out legitimate instructions” as an example of gross misconduct, which might result in dismissal, as was the case here.
Whilst this case is only first instance (and so not legally binding) it provides a useful insight for employers into how the tribunal might determine cases where employees refuse to have the vaccine for reasons other than religious beliefs or medical concerns. The case serves to demonstrate the importance of keeping good records and closely following formal processes, which is almost certainly the best way for employers to establish a good defence to potential tribunal claims.
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