An employment tribunal recently decided in the case of Allette v Scarsdale Grange Nursing Home Limited that the nursing home was fair to sack one of their employees for refusing to get the Covid-19 vaccine. David Sheppard and Ferial Khan review the ruling.
The claimant worked as a care home assistant at the nursing home, which provided residential care for dementia sufferers. A roll-out of the Covid-19 vaccine to both staff and residents at the care home was due to take place in December 2020 but was delayed to January 2021 because of Covid outbreak at the nursing home.
The nursing home adopted a policy of mandatory vaccination of its employees, mainly because their insurers refused to provide public liability insurance cover for Covid-19 related risks from March 2021 onwards. Without such cover, the nursing home would bear the risk of liability if unvaccinated employees were found to have passed the disease on to a resident or visitor.
The claimant did not want to be vaccinated but only became aware of her vaccination appointment the day before. She explained her reasons over the telephone to one of the directors of the nursing home which included her mistrust of the vaccine’s testing processes, her belief it was a government-based conspiracy and her concerns over the lack of guarantee on safety.
Because she refused, she was subjected to a disciplinary process. She indicated at a disciplinary hearing that she also had an objection to the vaccine based on religious grounds as she was a practicing Rastafarian. Despite being employed by the nursing home since December 2007, the tribunal found this was the first time the claimant had made the nursing home aware of her faith.
After the disciplinary process, the nursing home decided that they could not pose a risk to the other employees’ and residents’ health for the sake of making an exception for one person, and decided to dismiss the claimant for refusing to follow a “reasonable management instruction”.
The claimant’s claims for unfair dismissal and wrongful dismissal against the care home were rejected by the employment tribunal. The tribunal acknowledged her right to respect for private life under Article 8 of the European Convention on Human Rights, and her genuine fear and skepticism of the vaccine, but also noted that no medical authority was cited for this.
The tribunal took into account that the nursing home was a small employer with a legal and moral obligation to protect its vulnerable residents. Despite the limited knowledge of how safe the vaccine was, the mandatory vaccination policy had to be implemented to coincide with the nursing home’s primary aim of protecting its residents’, employees’ and visitors’ health and avoiding the risk of breaching its updated insurance policy. The tribunal acknowledged that a difficult decision had to be made, and concluded her dismissal – although amounting to an interference with the claimant’s Article 8 rights – was proportionate in this case and was a fair and reasonable. The tribunal also found that the nursing home’s decision to dismiss was not because of the claimant’s religious beliefs.
As this is a decision in the employment tribunal, it is not binding on other tribunals, and it remains to be seen if the claimant will seek to appeal the decision in the Employment Appeal Tribunal. However, it is an important early decision by a tribunal engaging the likely issues and law which will be considered as more claims will be brought by employees dismissed, demoted or disadvantaged because they refused to be vaccinated.
Our previous articles on so-called “no jab no job” policies have predicted that tribunals will be sympathetic to employers where there is a high risk of covid transmission and serious illness means such policies are more likely to be proportionate, and accordingly non-discriminatory and any resulting dismissals fair. On the other hand, it remains to be seen if such policies in lower risk settings, such as offices, would be found to be lawful.
Another important issue is that the claimant was dismissed before Covid-19 vaccination became legally compulsory for care home employees in England. The judgment is therefore a helpful guide of how tribunals will assess proportionality in settings where vaccination is not legally mandated, such as care homes in Wales. With the proposal for legally compulsory vaccination for NHS workers in England coming into force on 1 April 2022, despite the hopeful signs the worst period of the pandemic is now fading, the legal and ethical controversy of mandated workplace vaccines will continue for months to come.