An employment tribunal has found in the case of Allette v Scarsdale Grange Nursing Home Limited that Ms C Allette was fairly dismissed from her place of work after she refused to vaccinate against COVID-19. Her claims of unfair dismissal and wrongful dismissal were considered ‘not well-founded’ at tribunal.
Quick run-down of the facts
In December 2020 the government launched a vaccine rollout for care-home residents and employees as the sector had been identified as particularly vulnerable to the covid-19 pandemic. Unfortunately, Scarsdale Grange suffered an outbreak of covid in December 2020 that affected both employees and residents greatly, with some residents sadly losing their lives. As a result, Scarsdale Grange had to re-schedule their original arrangements for a vaccine rollout from December 2020 to January 2021. At this time, the government had not made it mandatory for care home workers to be vaccinated to work, but Scarsdale Grange care home conveyed that it would be mandatory for employees to receive the vaccine if they wanted to remain an employee with them. Ms Allette had not realised this until the day before the vaccine was due to be administered and had believed that uptake was simply encouraged. During a phone call, she explained that she would be refusing the vaccine as she did not trust it.
Following this, Allette was invited to a disciplinary hearing for failing to follow a reasonable management instruction. During this she claimed that her reason for refusing the vaccine was due to her Rastafarian religious beliefs which she claimed to have referenced originally. The Tribunal found that Scarsdale Grange was unaware that the claimant was a practicing Rastafarian until the disciplinary hearing. During this hearing, it was explained to the claimant that it was reasonable for the care home to mandate her uptake of the vaccine for their insurance coverage concerns. Allette was the only permanent member of staff out of a total of 65 to not receive the vaccine and was therefore ‘the most likely vector for infection’ which puts Scarsdale Grange at risk to litigation claims. As a result of all considerations, Allette was dismissed for gross misconduct on the grounds of failing to follow a reasonable management instruction to be vaccinated.
The claimant brought claims for unfair dismissal and wrongful dismissal.
The employment tribunal dismissed both claims, it found that Scarsdale Grange had “acted within the range of reasonable responses of a reasonable employer”. It was accepted that the care home had a primary legitimate aim to protect the health of their residents, staff and visitors, and a secondary aim to not breach their insurance policy. The tribunal accepted that there was a pressing need to try and reduce the risk factors that covid had presented, and therefore any interference with the claimants right to respect for private life under Article 8 of the ECHR was justified.
The tribunal also ruled that Allette was not genuine in her refusal of the vaccine on religious grounds, and that refusal based on mere scepticism of official advice was grounds enough for Scarsdale Grange to dismiss the claimant for failure to follow the managements instruction to take the vaccine.
What does this ruling mean?
During the timeframe of this case, the vaccine was not mandatory for care home workers. Since then, there has been legislation that requires frontline health care workers to have the vaccine if they do not have a genuine medical exemption. Dismissal of an employee who refuses to take the vaccine is now reasonable on statutory grounds.
However, the ruling may be a good indicator for industries where vaccination is not currently compulsory but staff come into close contact with others. It is important to note that this case is not legally binding, but merely presents how a tribunal may approach similar cases in relation to the covid vaccine. This case may also be subject to appeal, and it is likely that over coming months there will be similar cases brought to tribunal.
mpm insights – What should employers consider?
Each case will ride on its own facts and disciplining or dismissing an employee for refusing to get vaccinated still comes with various risks, especially for employers outside the healthcare sector. Employers should consider:
- Reasonableness – employers need to prove that it was reasonable to mandate the vaccine on its employees
- Discrimination – is the reason for refusal one that might be protected by UK discrimination laws?
- Constructive dismissal – employers should be careful of placing undue pressure on employees to get vaccinated to avoid claims of workplace bullying
- GDPR – asking for employees to provide their vaccination status will fall within the scope of GDPR as special category data, and will be subject to all the additional protections that apply
If in doubt, pick up the phone to your usual contact at mpm legal to discuss your particular situation.