Care home worker who refused vaccination was fairly dismissed

Written by James Tamm on 26 January 2022

Compulsory vaccination is a contentious issue – both from a moral and legal standpoint – eliciting strong opinions on both sides. In the workplace, many employers have taken the decision to implement ‘no jab, no job’ policies, and in sectors such as care, new regulations now require workers to be fully vaccinated, unless exempt. Already, this has sparked a raft of refusals.

As a largely untested area of employment law, and with the Employment Tribunal system facing a backlog of cases, it’s been unclear how the fallout from such policies, namely claims for unfair dismissal, will play out – until now.

In what is likely to be the first of many similar cases, a Tribunal has found that a care worker who refused to get vaccinated was fairly dismissed, despite vaccination not being mandatory in care settings at the time.

Alette v Scarsdale Grange Nursing Home (SGNH) Ltd

The claimant in this case, Ms Alette, worked as a care assistant in a nursing home for people with dementia. In January 2021, before there was a statutory obligation on care home staff to be vaccinated, the home Ms Alette worked in, SGNH, decided to make vaccination a condition of continued employment. SGNH had suffered a COVID outbreak a month prior, which had affected 33 staff and 22 residents, a number of whom had died.

Ms Alette expressed that she did not want to have the vaccine. In a telephone call with one of the directors of SGNH, she explained that she felt it had been “rushed through testing” and “did not see how it was possible to guarantee its safety”. She had also read stories online about a government conspiracy.

Later, at a disciplinary hearing, Ms Alette raised that she was a practising Rastafarian and had a religious objection to vaccination. This was the first time SGNH had been made aware of her beliefs. SGNH explained to Ms Alette that her refusal would create insurance issues for the home, who would be liable if an unvaccinated member of staff was found to have passed the virus to a resident.

It was ultimately determined that Ms Alette did not have a reasonable excuse for refusing the vaccine, that they could not make an exception for one member of staff, and that allowing her to remain unvaccinated put others at risk. She was therefore dismissed for refusing to follow a reasonable management instruction.

Ms Alette brought a claim for unfair dismissal. The question here was, was SGNH’s requirement reasonable, and was Ms Alette’s refusal unreasonable?

The Tribunal held that Ms Alette’s reason for refusing vaccination was her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than any religious belief. While this fear and scepticism was genuine, it was unreasonable in the circumstances, as she had no medical authority or clinical basis for not receiving the vaccine.

Balanced against this, SGNH had legitimate aims in requiring vaccination: to protect the health and its staff, residents and visitors, as well as to avoid voiding its insurance policy. It was reasonable for it to conclude that an employee who was merely sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine.

In regard to whether the dismissal breached Ms Alette’s right to respect for private life under Article 8 of the European Convention on Human Rights, the Tribunal concluded that the nature of SGNH’s business and the vulnerability of its service users meant that the interference with her private life was proportionate in the circumstances.

Ms Alette’s claim was therefore rejected.

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Implications for employers

This is welcome decision for employers, especially those in the care sector. Whilst acknowledging that mandatory vaccination could interfere with the employee’s right to respect for private life, the Tribunal sensibly decided that in these circumstances, such interference was proportionate.

However, the facts of this case are very specific, so caution does need to be exercised. In particular:

  • Health and social care are exceptionally high-risk sectors, so mandatory vaccinations are more likely to be proportionate and necessary. In other less-risky workplaces, the same considerations do not apply, and it is less likely that an instruction to be vaccinated would be considered reasonable. If mandatory vaccination is not an option, a strict regime of testing – along with other social distancing measures – is the best way to avoid the spread of COVID-19. See our Vaccination and Testing Guide (available to download below) for more information.
  • In this particular case, the claimant’s reasons for refusal were unjustifiable. However, there are certain reasons for refusing a vaccine – such as on health or religious grounds – that may constitute a reasonable excuse, even in the care sector.
  • The employer’s circumstances were also quite niche. This was early in the pandemic when less was known about the effectiveness of vaccines to prevent the spread of infection, the home had suffered a recent COVID outbreak, and there were specific insurance concerns that might not apply to other business. All of these were critical to establishing the reasonableness of the request to be vaccinated in this case.

Importantly, this is only a first-instance decision and so is not binding on other Tribunals. In other words, it probably doesn’t give employers carte blanche to dismiss anyone who refuses vaccinated as other Tribunals could reach different conclusions on a different set of facts.

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Safest to seek advice

Vaccination is a particularly tricky topic for employers to navigate. It‘s always safest to seek advice before taking action against employees who refuse, as this will minimise the risk of grievances, resignations and even Tribunal claims

Our Employment Law and HR experts can help you to develop your company policy, handle objections compliantly and avoid discrimination issues, so that you can keep your workforce safe while avoiding costly mistakes.

For advice and support, call 0345 226 8393 or request your free consultation using the button below.

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