An employment tribunal has found that the dismissal of a care home employee for refusing to be vaccinated against Covid-19 in January 2021 was not unfair in Allette v Scarsdale Grange Home Ltd.
The claimant worked as a care assistant in a nursing home providing residential care for dementia sufferers. The roll-out of a Covid-19 vaccine was scheduled for January 2021 (there was no statutory obligation on care home workers to be vaccinated at this point) and the care home decided to make having the vaccine a condition of continued employment. The claimant became aware of this on 12 January 2021, the day before she was due to have her vaccine. She spoke to one of the directors of the home, M, stating that she didn't trust the vaccine's safety. A disciplinary hearing took place on 28 January at which the claimant indicated, for the first time, that she had a religious objection to the vaccine based on her Rastafarianism. During the hearing M explained that the home's insurers had told him that they would not provide public liability insurance for the home after March 2021 and that the home would face the risk of liability if unvaccinated staff were found to have passed Covid on to a resident or visitor.
Following the hearing M concluded that A did not have a reasonable excuse for refusing the vaccine and, if she remained unvaccinated, she would pose a real risk to the health of residents, staff and visitors. She was dismissed for refusing to follow a reasonable management instruction and went onto claim unfair and wrongful dismissal.
The tribunal rejected her claims. It considered whether the dismissal breached her right to respect for private life under Article 8 of the European Convention on Human Rights and concluded that it did not. The respondent 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. It was a small employer with a legal and moral obligation to protect its vulnerable residents and although the claimant's fear of the vaccine was genuine it was unreasonable as she had no medical authority or clinical basis for not receiving it. Given the vulnerability of its residents, the respondent was required to do some difficult decision-making and, taken in this context, the interference with the claimant's private life was proportionate.
The tribunal found that the respondent genuinely believed that the claimant was guilty of misconduct. It did not believe that her refusal was connected with any religious belief (this reason was not raised in her first conversation with M, but only at the disciplinary hearing itself) and concluded that it was on the grounds of scepticism about the vaccine itself.
Take note: Although Allette deals with the care sector (a sector which caters for the needs of vulnerable people who are particularly at risk from Covid) it shows how a tribunal will balance an individual's Article 8 rights against the rights of others, and how the reasonableness of an employee's reasons for refusing the vaccine will be viewed in the context of the situation, and knowledge, existing at the time. Given that mandatory vaccination has now been scrapped, this case is a useful one as it will no longer be possible for care homes to successfully argue that a claimant's dismissal in this type of situation is fair due to a legal obligation on care home workers to be vaccinated.
