As the UK Government announce that the legal requirement for health and care staff in England is to be removed, subject to consultation and parliamentary approval, an employment tribunal has considered the case of a care worker who declined vaccination in early 2021. In Allette v Scarsdale Grange Nursing Home Limited the claimant was dismissed from her role as a care assistant at a home providing residential care to dementia sufferers. The home had been hit by a Covid-19 outbreak in December 2020 with 22 residents and 33 staff (including the claimant) being infected and a number of deaths had occurred.
Following the outbreak the employer made vaccination a condition of continued employment. The claimant was concerned about vaccine safety, believing it had been rushed through testing and she had read stories on the internet about a Government conspiracy. At a disciplinary hearing she also indicated, as a practising Rastafarian, an objection on religious grounds. She also refused to answer questions about or acknowledge the risk unvaccinated staff posed. The employer meanwhile was going to be unable to insure against certain Covid-19 related risks post March 2021 and believed that unvaccinated staff would increase the likelihood or success of claims being made. The employer did not accept the claimant's reasons for refusing vaccination were reasonable. The claimant was summarily dismissed for gross misconduct - specifically failing to follow a reasonable management instruction.
The claimant's tribunal application alleged unfair dismissal and wrongful dismissal. The tribunal considered whether the dismissal was an unjustified interference with the claimant's European Convention on Human Right's ("ECHR") Article 8 right to private and family life. It found that the employer's aims of protecting staff, residents and visitors and not breaching the terms of their insurance were legitimate. The imposition of the mandatory vaccination policy met a pressing social need to reduce risk. Although the claimant's fears were genuine, they were unreasonable given the lack of any medical authority for her position. Given the nature of the employer's business and the vulnerability of its residents the interference with the claimant's private life was proportionate. Further, the claimant's scepticism of the official Government advice on the vaccine was not a reasonable excuse for failing to follow the instruction to get vaccinated. In all of the circumstances it was within the range of reasonable responses for the employer to dismiss.
In relation to the wrongful dismissal claim, because the claimant knew she represented a risk to others, her refusal to be vaccinated fell within the definition of gross misconduct in the employer's disciplinary policy. The employer was therefore entitled to summarily dismissal her and the wrongful dismissal claim also failed.
Whilst this case was an Employment Tribunal decision only and not binding on other Tribunals it does provide a useful indication of the issues that will likely be considered. The result - a fair dismissal - peculiar to the facts of the case and two variants of concern and 12 months later employers are dealing with very different circumstances. The recent change in the UK Government's position on mandatory vaccination in healthcare settings in England highlights the potential for such a policy causing both practical and legal difficulties. Although still subject to consultation, it seems likely that the regulations making vaccination a requirement of deployment in England are likely to be revoked. Employers, both public and private, can expect imposition of a similar policy and any consequent dismissals to be very closely scrutinised.
