COVID-19: dismissal for refusal to be vaccinated
Allette v Scarsdale Grange Nursing Home Ltd
The dismissal of a care home employee for refusing to be vaccinated against COVID-19 was fair.
Ms Allette worked as a care assistant in a nursing home providing dementia care. The care home avoided any outbreak of COVID-19 until December 2020 when it was severely affected, with 33 staff (including Ms Allette) and 22 residents contracting the virus. Vaccination of staff, originally scheduled for December 2020, was postponed and rescheduled for January 2021. There was nothing in Ms Allette’s contract requiring her to be vaccinated nor was there, at that point, any statutory obligation for care workers to be vaccinated. The employers decided, in January 2021, to make it a condition of continued employment that their staff be vaccinated. Ms Allette objected to this and explained her reasons to her employer. These included a lack of trust in the vaccine, that no one could guarantee its safety and that she’d read stories on the web about a government conspiracy. At a disciplinary hearing in late January she added that, as a Rastafarian, she objected to the vaccine on religious grounds. Her employer told her that their insurers might not provide public liability insurance after March 2021 and that it could be liable if unvaccinated staff passed the disease onto residents. The employer decided to summarily dismiss Ms Allette for refusing to follow a reasonable management instruction. She brought claims of unfair and wrongful dismissal.
Both claims were dismissed.
Ms Allette’s dismissal did not breach her right to respect for private life under art. 8 of the European Convention on Human Rights. The employer had a primary legitimate aim of protecting the health of staff, residents and visitors and a secondary aim of not risking breaching its insurance policy. While Ms Allette had a genuine fear of the vaccine, that was unreasonable given she had no medical authority or clinical basis for not getting vaccinated. Balanced against this was that the employer was a small employer with a legal and moral obligation to protect its vulnerable residents. In such a context, any interference with Ms Allette’s private life was proportionate.
As to the reasonableness of the dismissal (ERA, s. 98(4)), it was reasonable for the employer to conclude that an employee who was merely sceptical of official advice did not have a reasonable excuse for refusing to follow the management’s instruction to have the vaccine. The employer genuinely believed that Ms Allette was guilty of misconduct. It did not believe that her refusal was connected with any religious belief, given the way in which she had belatedly raised that issue. The employer had sought to persuade Ms Allette of the safety of the vaccine and had referred her to advice from Public Health England and other sources widely available on the internet. Ms Allette was clearly capable of researching independent scientific material for herself, had she chosen to do so.
Ms Allette claimed that there was no tangible benefit from having the vaccine since she had recently had the virus and would have antibodies. However the tribunal held that the employer had been guided by the prevailing medical advice at the time that it was possible to contract and transmit COVID-19 on more than one occasion.
The employer had acted within the range of reasonable responses of a reasonable employer and, taking account of Ms Allette’s art. 8 rights, dismissal was proportionate in the circumstances. While the employer could have given Ms Allette more opportunities to change her mind, may have been able to place her on unpaid or paid leave and/or could have sought further independent scientific information or material to seek to persuade her that the vaccine was safe and necessary, it could not be said that no reasonable employer would have acted as this employer did in the particular circumstances of this case. The tribunal concluded by saying that its decision ‘cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair’.
As for Ms Allette’s wrongful (as opposed to unfair) dismissal claim, her actions fell within the definition and examples of gross misconduct set out in the employer’s disciplinary policy. Her refusal to be vaccinated was therefore an action which, in the circumstances of this case, amounted to a repudiatory breach of her contract of employment entitling the employer summarily to dismiss her.
Link to judgment: https://www.bailii.org/uk/cases/UKET/2022/1803699_2021.html
As with all the COVID-19 dismissal cases, each one will be taken on its own facts. There is no doubt that the fact that the insurers were unlikely to cover any claims if staff were unvaccinated played a large part in the employer’s decision and was a deciding factor in deciding that it was a fair dismissal. Also, the analysis by the tribunal of the human rights element was very helpful. Although Ms Allette was not employed by the state, the tribunal reaching the decision is and so any decision they make can be challenged under the European Convention on Human Rights and the tribunal had to consider if the actions of the employer were proportionate.