A recent case, 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. However, employers should proceed with caution and would be wise to seek advice on their particular business circumstances if they too wish to make vaccinations mandatory.
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. The government had not made vaccinations in care homes mandatory at this stage. 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 for PHE.
Allette also claimed that as she has recently recovered from COVID she would have antibodies but the advice from PHE 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?
Despite the employment tribunal dismissing both claims, employers should be careful not to rely solely on this recent decision. Before introducing such a mandatory vaccine policy or dismissing employees for failing or refusing to follow it, they should seek bespoke advice.
These cases are likely to turn on the facts: whether statute imposes an obligation for vaccination of staff, the nature of the business, risk to the public and employees, size and resources of the business and Government advice at the relevant time.
There is also the potential for some employees to seek to rely on anti-vaccination as a belief and ‘protected characteristic’ under the Equality Act 2010, bringing yet another complication to any future tribunal claims pursued with no upper limit on compensation. However, employers should not be deterred from introducing such mandatory policies if they are necessary, reasonable and proportionate but should seek advice early to avoid potentially expensive and prolonged claims further down the line.
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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.