Dismissal of employee who refused Covid vaccine was fair
31 January 2022
The Covid-19 pandemic has forced employers into making many very difficult decisions, one of which has been to try to balance the obligation to provide a safe working environment for employees, whilst respecting employees’ individual choices on whether to get vaccinated against Covid or not. In some sectors such as care homes and the NHS the situation has been made clearer for employers in that it is (or soon will be) illegal to employ unvaccinated staff in certain roles.
But what is the position where there is no statutory requirement for an employee to be vaccinated? The position is far from certain, but the recent Employment Tribunal case of Allette v Scarsdale Grange Nursing Home Limited may give some indication of how Tribunals will deal with cases where unvaccinated employees who refuse to be vaccinated are dismissed. The issues in this case occurred before the statutory obligation for most employees in care homes to be vaccinated.
Facts of the case
Scarsdale Grange is a small nursing home in Sheffield. Ms Allette was employed as a care assistant. Her role involved attending to the personal care of residents at the home. She was initially offered the Covid-19 vaccine on 22 December 2020, after the government began its rollout to health workers and care home residents, but she refused to have it. The planned vaccinations were postponed until 13 January 2021 after an outbreak of Covid at the home which led to half the staff being told to self-isolate and a number of deaths among residents. The day before she was due to have the vaccine Ms Allette had a lengthy conversation with the home’s director in which she stated that she would not have the vaccine because of her concerns about its safety and her belief that the government were lying about its safety. Ms Allette made no mention of any religious beliefs. The director made it clear that if she refused to be vaccinated she would be disciplined and may be dismissed. Ms Allette was subsequently suspended and called to a disciplinary meeting.
At the disciplinary hearing she raised for the first time that she could not have the vaccination because of her Rastafarian beliefs under which she would not take any form of non-natural medication. Until that time, the directors had not been aware of her religious beliefs. The director explained to Ms Allette that the home’s insurers had told him that they would not provide public liability insurance for Covid risks after March 2021 and that the home therefore faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. Following the hearing, the director decided that Ms Allette 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. She had refused to obey a reasonable management instruction and she was therefore dismissed for gross misconduct.
Ms Allette brought claims of unfair dismissal and wrongful dismissal. These were rejected by the Tribunal. They held that although there was no contractual term requiring employees to have the Covid vaccine or any other vaccine, the home’s instruction to make vaccination mandatory for all staff was a “reasonable management instruction” in the circumstances and that Ms Allette’s refusal amounted to gross misconduct. The Tribunal accepted that Scarsdale Grange had a legitimate aim of protecting the health of staff, residents and visitors, and also of not risking breaching its insurance policy. In the Tribunal’s view, the mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents. The Tribunal noted that, while Ms Allette was genuine in her fear of and scepticism about the vaccine, that fear and scepticism was unreasonable in the circumstances since she had no medical authority or clinical basis for it.
Whilst this decision will be welcomed by many employers, it is only a decision at Employment Tribunal level and therefore not binding. It is also very fact specific, and the employer had gone to some length to try to persuade Ms Allette to have the vaccine and to explain to her why it was so important.
We are sure that there will be many more cases arising from the dismissal of non-vaccinated staff and each will be decided on its facts. Employers can help their chances of defending claims by following a proper procedure and ensuring that employees are made aware of the possible consequences of refusal. We are able to help employers implement this process.
If you are an employer dealing with an issue in relation to vaccinations then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].