In November 2021, the Government introduced a new law requiring mandatory vaccination for staff in Care Quality Commission (CQC) registered care homes in England. The media attention regarding this law and the many resulting dismissals of staff in the CQC sector, could not be missed. The same requirements were due to be rolled out for all NHS staff on 3 February 2022.
However, on 31 January 2022, shortly after the case of Allette v Scarsdale Grange Nursing Home Ltd, was decided and just days before the NHS requirement was due to come into force, the Government did a U turn on its plans to make COVID vaccinations mandatory for NHS staff in England, citing that it was “no longer proportionate to require vaccination as a condition of deployment by statute”. It confirmed that, subject to public consultation and parliamentary approval, the regulations would be revoked.
As of 1 March 2022, it has been confirmed that compulsory COVID vaccinations for care workers are indeed being scrapped in England. The requirement will end on the 15 March 2022. It therefore seems highly likely that, set against this new landscape, businesses and even health care settings, will find it much harder to justify a mandatory vaccination policy.
The care worker in this case below was fairly dismissed at a time when there were no laws in place requiring mandatory vaccination. However, it was also a time when COVID was far more prevalent and the risks to individuals far higher.
The case in question
The case of Allette v Scarsdale Grange Nursing Home Ltd, concerning the dismissal of a care home employee for refusing to be vaccinated against COVID 19 in January 2021 was not unfair, according to the employment tribunal.
The background to the case
The care assistant worked in a 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 as a priority was due to begin. SGNH Ltd, the care home operator, decided to make it a condition of continued employment that all staff were vaccinated. Allette refused the vaccine stating that she did not trust the vaccine’s safety.
At a disciplinary hearing on 28 January, Allette notified her employer for the first time that she had a religious objection to the vaccine based on her Rastafarianism. Her employer also explained that the home’s insurers said they would not provide public liability insurance for COVID-related risks after March 2021 and they faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.
It was concluded after the hearing that Allette did not have a reasonable excuse for refusing the vaccine and she was therefore dismissed for refusing to follow a reasonable management instruction.
Allette claimed unfair and wrongful dismissal but the tribunal rejected both claims, based on:
The mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents.
It was accepted that Allette had a genuine fear of the vaccine and scepticism but it was unfounded and unreasonable and not a reasonable excuse to refuse the vaccine - and did not affect her rights under Article 8 of the Human Rights Act 1996 and also met the reasonableness test under S.98(4) of the Employment Rights Act 1996.
The care home had a duty, both moral and legal, to protect its residents and its decision to introduce a mandatory vaccination policy was made at a time when the virus was circulating rapidly and most of the population was unvaccinated. It found that in this context the interference with Allette’s private life was proportionate.
The connection to Rastafarianism was rejected as it was only bought up at the 11th hour.
Allette claimed her employer should have steered her towards independent scientifically robust resources for information on the vaccine to allay her fears and scepticism but this was rebuked as information was widely available from Public Health England.
Allette also claimed that as she has recently recovered from COVID she would have antibodies but the advice from Public Health England at the time was that it was possible to contract and transmit the virus more than once – evidence of this was rife.
Taking all this in account the tribunal ruled that dismissal was within the range of reasonable responses.
What does this mean for employers?
The situation as of 15 March is that compulsory vaccination of care home workers is no longer law. One has to wonder, whether set against the current differing landscape, the Tribunal would have made a different decision. The constant change in these ‘COVID times’ shows just how important it is to always seek advice on your particular business circumstances before introducing any COVID policies or taking any related disciplinary action. Employers should review any policies that were introduced and might now be viewed as out of date.
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Helen is an expert in employment law, HR and commercial matters, including all manner of employment law issues (ranging from grievances and disciplinaries through to complex restructures and redundancy exercises), high value cross-border commercial contracts and business turnaround advice.