Employment Law Case Update: Unfair dismissal for Covid-19 vaccine refusal

Covid-19 has led to many various possible tribunal claims and today our Employment Law team discusses the case of Ms C Allette v Scarsdale Grange Nursing Home Limited 2021 which is sure to be the first of many.

In this case the Employment Tribunal (ET) considered whether an employee in a care home was unfairly dismissed after she refused to be vaccinated against Covid-19.

Ms Allette was employed as a care assistant from December 2003 until her dismissal in February 2021. Her contract of employment did not require mandatory vaccinations, nor did the employer’s policies.

The employer decided to implement a mandatory vaccination policy and arranged for vaccinations for all staff to take place in January 2021. This was before mandatory vaccination for care home workers became law. Ms Allette knew about these arrangements but only learned that vaccination would be mandatory the day before her vaccine was due to be administered. Ms Allette did not want to receive the vaccine. She explained to Mr McDonagh, a director of the home, that she felt testing had been rushed and did not trust that the vaccine was safe. She had also read stories on the internet about the vaccine being unsafe and that there was a conspiracy. Mr McDonagh explained that the vaccine was safe and why he wanted staff to have it. Ms Allette still refused to be vaccinated so she was consequently suspended and invited to a disciplinary hearing for refusing to follow a reasonable management instruction.

At the disciplinary hearing, Ms Allette alleged for the first time that she did not want to have the vaccine because she was a Rastafarian and it was against her beliefs to take non-natural medication. Mr McDonagh explained that staff needed to be vaccinated to protect residents, staff and visitors to the home. The employer’s insurers would also no longer provide public liability insurance for Covid-19 related risks after March 2021, and so the employer faced increased risk of liability if Ms Allette passed the virus to a resident or staff member. 

Mr McDonagh genuinely believed that Ms Allette posed a threat to the health and safety of the home’s residents, staff, and visitors. She was summarily dismissed on 1 February 2021 for gross misconduct for failing to follow a reasonable management instruction to be vaccinated. Ms Allette then brought a claim for wrongful and unfair dismissal.

The ET dismissed both of her claims. It determined that in the circumstances present in the home at the time, requiring staff to be vaccinated was a reasonable management instruction. The ET was not persuaded that Ms Allette acted reasonably in refusing the vaccine, nor was it convinced that religious beliefs were part of the reason for her refusal. Ms Allette had also accepted at her disciplinary appeal hearing that having the vaccine would reduce the risk to others in the care home. Under these circumstances Judge Bright reasoned that her refusal to get the vaccine amounted to gross misconduct.

The ET also found that Ms Allette’s right to respect for private life under Article 8 of the European Convention on Human rights was engaged, but that this had to be balanced against the Article 8 rights of the other people living and working in the care home. The home was a small employer with a “pressing social need” to reduce the risk to the vulnerable residents. Ms Allette’s scepticism of the vaccine was unreasonable in the circumstances, and allowing her to continue to work while unvaccinated “would pose a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the home.” The interference with her Article 8 rights was therefore justified.

The ET then considered whether dismissal was reasonable under S.98 of the Employment Rights Act 1996. The judgment concluded that it was reasonable “for an employer to conclude that an employee who was merely sceptical of the advice and did not trust the vaccine did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine”. Her dismissal was therefore fair.

This is a first instance decision and while not binding on future tribunals it does indicate that employers may, in some circumstances, be justified in dismissing an employee for refusing to be vaccinated. Employers should also note that Judge Bright was careful to state that the “decision in this case is based entirely on the facts of this case and cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against Covid-19 is fair”. Future cases involving mandatory vaccination will therefore be fact specific and we will probably see more cases of this type in the future.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.