As the National Health Service (NHS) in England faces removing staff who have refused vaccination from their roles, 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 occurring.
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 practicing 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 after March 2021 and believed that unvaccinated staff would increase the likelihood of success of claims being made. The employer did not accept that 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.
The tribunal found that the employer’s aims of protecting staff, residents and visitors and not breaching the terms of its 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 skepticism 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 dismiss her and the wrongful dismissal claim also failed.
While in this case the dismissal was fair, the decision was peculiar to the facts of the case. The current difficulties the NHS in England is facing as a result of the vaccination requirement for its frontline workers by April 2022 highlights the potential for such a policy causing both practical and legal challenges. There are already rumblings about a possible judicial review of the legislation and whether it remains a proportionate response given omicron’s apparent lower severity.
In addition, the NHS is facing the prospect of removing frontline staff while already dealing with both high levels of absence and vacancies. Employers, both public and private, can expect imposition of such a policy and any consequent dismissals to be very closely scrutinized. While 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.
Fiona Meek is an attorney with Morton Fraser in Edinburgh, Scotland, U.K. © 2022 Morton Fraser. All rights reserved. Reposted with permission of Lexology.