Employee dismissed for refusing to have a Covid-19 vaccine not unfairly dismissed

In Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal has ruled that the dismissal of a care home employee for refusing to be vaccinated against Covid-19 was not an unfair dismissal.

The home had planned for their staff and residents to be vaccinated at the beginning of the rollout of the vaccination programme but was hit by a Covid-19 outbreak before this could happen. 33 staff and 22 residents contracted Covid-19 and there were a number of deaths among the residents. The Claimant was one of the 33 staff to have contracted Covid-19.

The Claimant was a care assistant in a nursing home providing residential care to dementia sufferers. In January 2021 the home made vaccination mandatory as a condition of employment (prior to the mandatory vaccination scheme coming into force).

The day before the first jabs were due to be administered the Claimant was warned of disciplinary action if she refused to take the vaccine. The Claimant made it clear that she did not trust the vaccine as she felt that it had been rushed through testing, no one could guarantee its safety and she had read about Government conspiracies online. She also stated that it was against her Rastafarian beliefs to have non-natural medication and she believed that she had natural immunity from having already contracted the virus.

Following a disciplinary process, the Claimant was dismissed by the home for gross misconduct for failing to follow a reasonable management instruction (to be vaccinated). The Claimant brought an unfair dismissal claim and cited Article 8 of the European Convention on Human Rights (Right to Respect for Private Life).

The Employment Tribunal

Despite the Tribunal not doubting the Claimant’s genuine fear and scepticism about the Covid-19 vaccines, the Employment Tribunal found in favour of the employer.

The Tribunal stated that the employer acted within the band of reasonable responses and that the dismissal was proportionate in the circumstances. The Tribunal cited the employer’s need to protect its vulnerable residents and the fact that the employer would only have had limited knowledge about vaccines and the future of the pandemic at the material time. The Tribunal also cited the fact that the employer’s insurance company would not offer protection against incidences of Covid-19 if not all employees were vaccinated.

At the time of the facts of this case, we still knew little about Covid-19 and vaccination against it. There is now more information on the efficacy of vaccines and the transmission of Covid-19 meaning that the facts of this case will likely be distinguishable.

Despite the fact that the Government have announced plans to scrap the mandatory vaccination programme for health and social care workers, employers may still be keen for their employees to be vaccinated and could argue that this falls under their duty to provide a safe working environment.

Workplace vaccination and especially mandatory workplace vaccination gives rise to many ethical issues, employment law issues and data protection issues, and whether vaccination can be enforced as a condition of employment may be very fact-specific.

It should be noted that this case is a first instance decision and therefore is not legally binding on another Tribunal. However, the facts offer clear guidance that it may be possible to fairly dismiss in certain circumstances where vaccination is required and refused. Caution should always be taken with regard to vaccination policies.

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