Refusal of vaccination by a care home worker found to be a fair reason for dismissal

By January 24, 2022Employment

In the recent case of Allette v Scarsdale Nursing Home Ltd an employment tribunal found that the dismissal of a care home employee for refusing to accept the Covid-19 vaccination in January 2021 was fair.

Background

The Claimant was employed as a care assistant at a residential home for individuals suffering from dementia. Following a breakout of covid-19 in December 2020, the Respondent implemented a vaccine roll-out program for those working within the care home. At this point, there was no statutory obligation on care home workers to be vaccinated. However, the Respondent elected to make it a condition of continued employment.

The Claimant objected on the basis that she did not trust the safety of the vaccine. She felt that it had been rushed through without proper testing and was concerned about stories that she had read on the internet relating to Government conspiracy theories.

The Respondent subsequently commenced disciplinary proceedings against the Claimant for refusal to follow a lawful management instruction. At this point, the Claimant suggested that she had a religious objection to the vaccine based on her Rastafarianism. The Respondent had not previously been aware that the Claimant was a practising Rastafarian.

The Respondent found that the Claimant did not have a reasonable excuse for refusing the vaccine and that, if she remained unvaccinated, she would pose a real risk to the health of residents, staff, and visitors. The Respondent subsequently took the view that it could not make an exception for one member of staff because not all residents could be vaccinated, the vaccine was not 100% effective and visitors might be unvaccinated.

The Claimant was subsequently dismissed for refusing to follow a lawful management instruction and she brought claims for unfair and wrongful dismissal. Both claims were rejected by the tribunal.

Findings

In the first instance, the tribunal considered whether the Claimant’s dismissal was a breach of her right to respect for private life under Article 8 of the European Convention on Human Rights. However, considering the sector in which the Respondent operates and the vulnerability of its residents, the tribunal ultimately considered that the interference with the Claimant’s private life was proportionate.

The tribunal accepted that the Respondent’s legitimate interests were to protect the health of staff, residents, and visitors and to not breach its insurance policy, on the basis that the Respondent’s insurers would not provide public liability insurance for Covid related risks after March 2021 and the Respondent faced the risk of liability if the unvaccinated staff was found to have passed the virus on to a resident or visitor.

The tribunal also acknowledged that whilst the Claimant’s scepticism and fear about the vaccine was genuine, it was unreasonable on the basis that she had no medical basis to refuse the vaccine.

The tribunal also found that it was reasonable for the Respondent to conclude that an employee who was just sceptical of following government advice did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine.

The Claimant also argued that there was no tangible benefit to be achieved from her being vaccinated, given that she had recently recovered from the virus and would have antibodies. However, the tribunal accepted the Respondent’s evidence that the advice from Public Health England at the time was that it was possible to contract and transmit the virus more than once and that there was evidence of that occurring. In these circumstances, the tribunal found that dismissal was within the range of reasonable responses.

This said the tribunal did comment that more could have been done by the Respondent, for example placing the employee on paid or unpaid leave. The tribunal also reiterated that dismissals should be a last resort and emphasised the importance of considering each example of an employee refusing to have a Covid vaccine on a case-by-case basis.

It is anticipated that claims of this nature will increase over the coming months as they are filtered through the employment tribunal system. However, this case provides an interesting example of how the tribunal has considered a vaccine-related dismissal prior to the introduction of the mandatory vaccine regulations which are now in force in some sectors.

 

Should you have any questions relating to the topic covered or any other employment law related issue, please do not hesitate to contact a member of the team. We are here to help your business with any employment law challenge.

Russell Brown

Author Russell Brown

Russell is a Partner and Head of Glaisyers' Employment Team.

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