Dismissal for refusing COVID-19 vaccine fair…
In Allette v Scarsdale Grant Nursing Home Ltd the employment tribunal decided that it was fair for an employer to dismiss a health care worker when she refused to be vaccinated against COVID-19. The dismissal took place at the beginning of 2021, several months before it became a legal requirement for care home workers to be vaccinated.
Ms Allette was a care assistant in a home that provided residential care for people with dementia. In January 2021 the home asked all staff to have COVID-19 vaccinations as part of the government’s national vaccination programme. Care home residents and workers were given priority under the programme because of their vulnerability to COVID-19. The care home’s management decided that anyone who refused to be vaccinated would be dismissed. This was in part because of the need to protect vulnerable residents but also because insurance cover for COVID-related risks was going to be withdrawn after March 2021. When Ms Allette refused to be vaccinated she was dismissed. Her appeal against dismissal failed and she brought claims of unfair and wrongful dismissal in the employment tribunal.
The tribunal dismissed her complaints. Although the tribunal had to decide the case in a way that was compatible with Ms Allette’s right to respect for her private and family life, it also had to take the rights of residents and other staff into account. The employer had legitimate aims for requiring employees to be vaccinated. The home’s manager genuinely and reasonably believed that Ms Allette had failed to follow a reasonable management instruction and was guilty of misconduct. He had concluded that she was refusing to be vaccinated because of fear and scepticism about the vaccine, based on internet sources, which was unreasonable. If her religious beliefs as a Rastafarian were the reason for not having the vaccination, as she alleged, she would have mentioned those beliefs before the disciplinary hearing.
In all the circumstances, the decision to dismiss was within the range of reasonable responses and proportionate on human rights grounds. The employer was entitled to rely on the prevailing medical advice and conclude that having an unvaccinated employee presented a serious risk to vulnerable residents, other staff and visitors. Its decision was based on the prevalence of COVID in early 2021 as the country entered a third national lockdown, a recent outbreak within the home, which had resulted in the death of residents, and the imminent withdrawal of insurance cover. The dismissal was for gross misconduct and fair.
… but don’t bet the farm on it
The tribunal decision makes it very clear that it is not authority for the proposition that refusing to comply with an instruction to be vaccinated will always amount to misconduct, let alone gross misconduct. The case is fact specific and relates to the situation in early 2021 at a workplace where residents were especially vulnerable to COVID-19. It is also noteworthy that the employer was entitled to conclude that the employee’s refusal was not genuinely linked to her religion or belief, as she later claimed, but rather to vaccine scepticism more generally.
Employers in other sectors should remember that it is likely to be significantly harder to persuade a tribunal that a vaccination requirement is reasonable and a proportionate interference with employees’ human rights in a different context. Trying to impose a vaccine mandate in a workplace where the risk of COVID to staff and visitors is lower is much more likely to result in successful claims, particularly as we move towards treating COVID as an endemic disease.
Authored by Jo Broadbent and Stefan Martin.
