21 January, 2022
Allette v Scarsdale Grange Nursing Home Ltd
The claimant in this case worked as a care assistant in a nursing home which provided residential care for dementia sufferers. In December 2020, the roll-out of the covid vaccine to residents and staff was due to begin, however this had to be postponed until January 2021 following an outbreak of infections in the home, including the claimant.
At this time, there was no statutory obligation on care home workers to be vaccinated as there is now under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, although the Respondent had decided to make vaccination a condition of employment. This was because not all visitors would be vaccinated, and not all residents could be vaccinated due to medical reasons, and the home's insurers had advised that they would not provide public liability insurance for Covid-related risks after March 2021. As such, the home faced the risk of liability if unvaccinated staff were found to have transmitted covid to a visitor or resident.
The claimant understood that vaccinations were encouraged, however only became aware that it was a condition for her to keep her job the day before she was due to be vaccinated. She explained with one of the directors why she did not want to be vaccinated: she did not trust its' safety, it has been rushed through without proper testing, she had read stories online about it being a conspiracy, and there was no guarantee that it was safe.
The claimant subsequently, at a disciplinary hearing, indicated that she had religious objections to the vaccine based on her Rastafarianism, which was the first time the hearing officer knew that she was a practicing Rastafarian. The officer concluded however that the claimant did not have a reasonable excuse for the vaccine refusal and that he could not make an exception for her. As such, the claimant was dismissed for refusing to follow a reasonable management instruction.
The claimant brought claims for unfair and wrongful dismissal, both of which were rejected by the tribunal.
Whilst the claimant was genuine in her fear of and scepticism about the vaccine, that fear and scepticism was unreasonable in the circumstances since she had no medical authority or clinical basis for not receiving the vaccine. Balanced against this, the Respondent was a small employer with legal and moral obligations to protect its residents, staff and visitors. The Tribunal accepted that the Respondent's decision to impose vaccination was to be seen in the light of the more limited knowledge about vaccines and the progress of the pandemic at that time, and given the context, the decision makers at the care home were required to do some difficult decision-making, and the interference with the claimant's private life in this instance was proportionate.
The tribunal found that the disciplinary officer genuinely did not believe that the claimant's refusal was connected with religious belief, due to the late notice of this point being raised, and an employee who was merely sceptical of official advice did not have a reasonable excuse for refusing to follow the management instruction to be vaccinated.
Ultimately, the tribunal decided that dismissal was within the range of reasonable responses.
The case is interesting to see how tribunals are reacting to dismissals relating to covid vaccine refusals prior to the implementation of the mandatory vaccination regulations, which are now in force and relevant for some sectors. It is also interesting to see how the balance of protection of health and the rights of freedoms of residents, other staff, visitors and employees were weighed against each other.
It is worth noting however that the tribunal did comment that more could have been done by the Respondent, for example placing the employee on paid or unpaid leave, or seeking further information to try to persuade her of the safety and necessity of the vaccine in order to provide more opportunity for her to change her mind, reiterating that dismissals should be a last resort and the importance of considering each instance of an employee refusing to have a covid vaccine on a case by case basis.
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