It’s common knowledge that most care home workers are required to be fully vaccinated against COVID-19. This requirement is underpinned by statute and further details can be found here.
In the recent case of Allette v Scarsdale Grange Nursing Home Ltd, the Employment Tribunal was required to decide whether it was fair to dismiss Ms Allette, a care home worker who refused to be vaccinated. Interestingly, at the time of Ms Allette’s dismissal, there was still no legal obligation for care home workers to be vaccinated; the facts of this case preceded the legislation.
Ms Allette was employed from 2007 by Scarsdale Grange Nursing Home Limited, which provides dementia sufferers with residential care. Her role involved tending to the personal needs of the Home’s residents.
In December 2020, the Government announced that the COVID-19 vaccination programme would be rolled out to residents of care homes and care workers, in an attempt to “address the particular vulnerability of that sector”. The Home’s staff were due to receive their first COVID-19 vaccination on 22 December 2020, but this was delayed by a COVID-19 outbreak at the Home. Over a ten-day period, 33 staff (including Ms Allette) and 22 residents contracted COVID-19, sadly resulting in numerous deaths.
The vaccinations were rescheduled for 13 January 2021, and Ms Allette was informed of the Home’s decision that vaccination against COVID-19 was mandatory if she wanted to retain her employment with the Home. There was nothing in Ms Allette’s employment contract that expressly required her to have vaccinations, and nor was there anything in the Home’s disciplinary procedure about vaccine refusal. Previously at the Home, staff had been encouraged to receive annual flu vaccinations, but were not required to do so.
Ms Allette telephoned a Director of the Home on 12 January 2021 and explained her reasons for not wanting the COVID-19 vaccination. These included not trusting that the vaccine would be safe, concerns that the vaccine had been rushed through testing, and stories of the vaccine being unsafe and part of a Government conspiracy. Ms Allette was informed that if she refused to receive the vaccination the next day, she would be suspended and disciplined.
When Ms Allette attended the Home for her next shift on 16 January 2021, she was handed a suspension letter and an invitation to a disciplinary hearing. The disciplinary allegation against Ms Allette was that she had failed to follow a reasonable management instruction to have the COVID-19 vaccination and that not trusting the vaccine was not a reasonable reason to refuse it in the circumstances.
In her disciplinary hearing on 28 January 2021, Ms Allette explained that she was a practising Rastafarian, and that her religious beliefs were why she refused to take the vaccine. She had not mentioned these beliefs previously. The Home did not accept that Ms Allette’s religious beliefs were why she refused the vaccine, but rather thought she “had clearly accepted that her excuse was not good enough which is why she was prepared to invent a reason which she considered more plausible…[Ms Allette] also knew of the potential consequences to the Home of having a discrimination claim brought against it”.
At the hearing on 28 January, the Home also explained to Ms Allette that its insurers would not provide public liability insurance for COVID-19 related risks after March 2021, which meant that if an unvaccinated staff member was found to have passed on COVID-19 to a resident or visitor of the Home, the home risked liability. The Home conveyed similar issues to Ms Allette about employer’s liability insurance and explained that the Home’s insurers were expecting the Home to insist that all staff were vaccinated against COVID-19, unless refusal could be reasonably justified.
The Home summarily dismissed Ms Allette on 1 February 2021, on the basis that she had committed gross misconduct by failing to follow a reasonable management instruction to be vaccinated. Ms Allette brought Employment Tribunal claims against the Home for wrongful and unfair dismissal.
The Employment Tribunal rejected her claims. The Tribunal found that it was a reasonable management instruction to make COVID-19 vaccination mandatory for staff who were providing close personal care to vulnerable residents in all the circumstances, in particular: “the state of the [COVID-19] pandemic nationally at that time, the dreadful consequences of the recent outbreak at the Home, and the advice from [Public Health England] and [the Government’s Medicines and Healthcare products Regulatory Agency] with regard to the virus and vaccination”. Ms Allette failed to present “any medical authority or clinical basis for her belief that the vaccine was not safe”.
The Tribunal also agreed with the Home that Ms Allette’s religious beliefs did not factor into her reasons for refusing the vaccine. Otherwise, she would have mentioned them in the telephone call on 12 January 2021.
While the Tribunal made a point to clarify that “in another case on different facts” refusing vaccination would not necessarily “amount to gross misconduct, or event misconduct at all”, it found that here Ms Allette‘s actions constituted gross misconduct.
The “right to respect for … private and family life” in Article 8 of the European Convention on Human Rights was also considered by the Tribunal. The Tribunal held that dismissing Ms Allette for refusing to have the vaccine was an interference with this right, but it went on to find that this was justified. The Home had legitimate aims for issuing a management instruction requiring employees to be vaccinated against COVID-19, and for dismissing Ms Allette when she failed to comply with it. The “key legitimate aim was to protect the health and safety of residents, staff, and visitors to the Home during the [COVID-19] pandemic”. The second legitimate aim was “concern about the withdrawal of insurance cover”. The Tribunal held that the interference with Ms Allette’s private life by requiring her to have the vaccine was necessary in light of the “pressing social need…to reduce the risk” to the Home’s vulnerable residents.
In turn, the Tribunal found that the Home had acted fairly and reasonably by dismissing Ms Allette in the circumstances. Again, however, the Tribunal stressed that its “decision in this case is based entirely on the facts of this case and cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against [COVID-19] is fair”.
This case is an interesting example of how dismissing an employee who refuses to be vaccinated against COVID-19 was fair, even without a legal requirement for the employee to be vaccinated. However, the Tribunal was clearly at pains to highlight that each case will be decided on its own facts, and that this case should not be interpreted as meaning that it will usually be fair to dismiss an employee who refuses the COVID-19 vaccine. Given the importance placed on protecting the vulnerable residents of the Home in the Tribunal’s reasoning, it may well be difficult to find similar facts outside the care sector.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.
