Employment Tribunal Rules Care Home Worker Was Fairly Dismissed After Refusing Covid Vaccination

Allette v Scarsdale Grange Nursing Home

Case background

Mrs Allette (the Claimant) was employed by Scarsdale Grange Nursing Home (the Respondent) as a Care Assistant between 3 December 2007 until her dismissal on 1 February 2021. Despite the high number of Covid-19 cases in care homes across the UK during 2020, Scarsdale Grange avoided any major outbreaks of Covid-19 until December 2020.

In December 2020, the Government announced the rollout of the Covid-19 vaccine programme to the vulnerable sector, such as nursing home residents and health workers. The Respondent made arrangements for all staff to have their first vaccination against Covid-19 on 22 December 2020.

Unfortunately, during this time the care home was hit with a mass outbreak of Covid-19 which resulted in 33 staff and 22 residents contracting the illness in the course of 10 days. This meant that half the staff was required to self-isolate and there were a number of deaths amongst the residents. Mrs Allette was one of the staff who contracted the illness and was required to self-isolate, she was absent from the care home during the height of the outbreak.

This also meant the planned vaccinations on 22 December had to be rearranged due to the outbreak. The planned vaccinations were moved to 13 January 2021. It is important to bear in mind that at this point in time, the Government had not yet introduced legislation that made it mandatory for those working in the care sector to be fully vaccinated against Covid-19. This requirement came into force November 2021 but will be removed on 15 March 2022.

On 12 January, in a 43-minute phone conversation with the Care Home’s Director (Mr McDonagh), Mrs Allette became aware that in order for her to retain her job role, she had to be vaccinated. Prior to the call, she thought that the Care Home was simply encouraging workers to get vaccinated but it wasn’t mandatory. She informed Mr McDonagh of her concerns about the vaccine, which included believing that the Government was lying about its safety, that it had been rushed through without adequate testing, and that she and her son had read internet stories regarding a Government conspiracy. Therefore, she refused to have it.

Mr McDonagh made it clear during the call that the Claimant would be suspended and disciplined if she refused the vaccination the following day. When she arrived for her shift the next day, she was given a letter of suspension.

The Claimant was then invited to attend a disciplinary hearing on 28 January 2021 for not following a reasonable management instruction. At the hearing, Mrs Allette referred to being Rastafarian and said her religious beliefs prevented her from being vaccinated. However, she had not mentioned these beliefs in the phone call or at all prior to the disciplinary hearing.

During the hearing, Mr McDonagh informed the Claimant of his concerns that the Care Home could be held to be liable if a resident or visitor contracted the virus from unvaccinated staff members. Mr McDonagh also said that after March 2021, the Care Home’s insurer had stated that it would not provide public liability insurance for Covid-related risks.

Mrs Allette argued that as the only unvaccinated staff member, she would not need to be vaccinated to protect others and that Mr McDonagh had not provided her with expert advice about the safety of the vaccine. Mrs Allette also argued there was no mention in her contract of employment that required her to have vaccinations.

Mr McDonagh and the Care Home took the view that it couldn’t make an exception for one staff member as not all residents could be vaccinated, the vaccine wasn’t 100% effective and those visiting the Care Home might be unvaccinated. There was also a genuine belief that Mrs Allette wasn’t being honest in the reasons she cited for not being vaccinated. Mr McDonagh subsequently sent a letter to the Claimant on 1 February 2021 which informed her that she was summarily dismissed for gross misconduct on the basis that she hadn’t followed a reasonable management instruction to be vaccinated.

Mrs Allette brought claims against the Care Home for unfair and wrongful dismissal.

The Tribunal’s decision

The Tribunal dismissed Mrs Allette’s claims as it ruled that her dismissal was fair and that Scarsdale Grange Nursing Home had not breached her contract of employment.

Even though there was no contractual term requiring the Claimant to be vaccinated, the care home had a legitimate aim for both the management instruction requiring staff members to be vaccinated against Covid-19 and that the Claimant’s refusal amounted to gross misconduct.

A further legitimate aim of concern over the withdrawal of insurance cover was also accepted by the Tribunal.

The Tribunal accepted that the Claimant did have a genuine fear of and scepticism about the vaccine, but she had no medical authority or clinical basis for refusing vaccination.

Additionally, the Care Home was a small employer with a legal and moral obligation to protect its residents, and it had to make decisions regarding the vaccination based on the limited information and knowledge about it at that point in time. The Tribunal accepted that Mr McDonagh was required to make tough decisions during an unprecedented time and concluded that the interference with Mrs Allette’s private life was proportionate in the circumstances – this was one of the other issues considered by the Tribunal (e.g. whether the dismissal breached Mrs Allette’s right to respect for private life under Article 8 of the ECHRs).

Can an employee be dismissed for refusing to be vaccinated?

The Claimant’s refusal to be vaccinated was seen to be unreasonable due to the national lockdowns and high death rates within the home at the time. Forcing an employee to be vaccinated could amount to unlawful discrimination if their refusal is related to a protected characteristic however, as Mrs Allette did not raise her alleged religious beliefs until the hearing so it was reasonable of the Care Home not to attach weight to them, meaning that dismissing Mrs Allette was legally acceptable.

This case will be of interest to private sector employers considering the introduction of mandatory vaccine policies for their staff as this shows they can be justified on the facts of the case.