COVID-19: was it fair to dismiss a care home worker who refused to be vaccinated?

More coronavirus related cases are now making their way through the tribunal system. In Allette v Scarsdale Grange Nursing Home Limited the tribunal was asked whether a care home employee who refused to be vaccinated had been fairly dismissed.

The facts

The claimant was a care home assistant, working for a family run business providing residential care for dementia sufferers. Her employer made it a condition of continued employment that all its care home workers were vaccinated (before legislation was brought into force in England requiring care home workers to be vaccinated, unless exempt).

In January 2021, the claimant told her employer during a call that she did not want to be vaccinated against COVID-19 because she did not trust that it was safe. She thought that it had been rushed through without proper testing. She also mentioned that she had read stories online about it being unsafe and that there was a government conspiracy about its safety.

The claimant was suspended and invited to a disciplinary hearing on the grounds that she had refused to follow a reasonable management instruction to have the vaccination and that her reasons for refusing the vaccine were not reasonable in the circumstances.

At the disciplinary meeting the claimant again noted her scepticism and lack of trust about the vaccine's safety. She also said (for the first time) that as she is a Rastafarian it was against her beliefs to take any form of non-natural medication. 

The employer explained that it required all its care home staff to be vaccinated because:

• Due to the nature of the business, having an unvaccinated member of staff presented too much of a risk particularly to vulnerable unvaccinated residents and and visitors;
• There was a history of outbreaks in nursing homes during 2020 and there had been a recent outbreak at the care home which led to half of the staff having to self-isolate and the death of some residents;
• Its insurers would not provide public liability insurance for coronavirus related risks after March 2021, meaning that it could risk liability if unvaccinated staff passed infection to residents or visitors; and
• There were no alternative positions for the claimant where she would avoid coming into contact with others. 

The claimant was ultimately dismissed on grounds of gross misconduct for her unreasonable failure to comply with a reasonable management instruction.

The decision

The tribunal found that:

• There was no contractual term requiring the claimant to have the vaccine but the decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction.
• The claimant's refusal was not related to a protected religious belief. The real reason for her refusing was because she was sceptical about the vaccine.
• It was not reasonable for the claimant to refuse the management instruction to be vaccinated, given that her view was based on unidentified internet sources and a belief in a conspiracy about vaccination. She had no medical authority or clinical basis for not receiving the vaccine.
• The refusal constituted (i) gross insubordination / refusal to carry out legitimate instructions; and (ii) a serious breach of the rule requiring employees not to take action which would threaten the health of others.
• The employer had considered alternatives to dismissal.
• In theory the employer could have given the claimant more opportunities to change her mind; placed her on paid or unpaid leave; or sought further independent scientific information or material to convince her that the vaccine was safe. However, in the circumstances the employer had acted within the range of reasonable responses in dismissing her for gross misconduct.

Human rights – Article 8 ECHR

The claimant had also alleged that her Article 8 right to respect for her private and family life under the European Convention on Human Rights was breached. The tribunal agreed that her right was engaged by the employer’s instruction that she had to be vaccinated, given that she would face disciplinary action and dismissal for refusing to do so. However, the instruction was found to be justified.

The employer's aim of protecting the health and safety of residents, staff and visitors during the pandemic was legitimate, given the history of outbreaks in care homes and residents' vulnerability. The rights of residents, other staff and visitors had to be balanced against the claimant's rights. Given the nature of the business and the vulnerability of the residents, the interference with the claimant’s private life was proportionate.

Comment

The case suggests mere scepticism of the vaccine may not be a reasonable reason for refusing a vaccine in settings where an employer can justify mandatory vaccination. The case involved a fact sensitive balancing act between the rights of the individual and others. 

At the time of the case, there was no statutory obligation on care home workers to be vaccinated. This was brought into force in England in November 2021 (there is no corresponding requirement in Scotland) but the government is now planning to remove the obligation.

The decision was only at tribunal level, so it is not binding on other tribunals. In addition, the wider relevance of the case may be limited – the tribunal was careful to note that its decision was based entirely on the facts of the case and cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 will be fair in other cases.

Whether a dismissal for failure to comply with a mandatory vaccination policy will be fair depends on all the circumstances, including the sector; nature of the workplace; the reasons for insisting on vaccination; the employee's reasons for refusing; and whether there were any alternatives to dismissal.

More information

Please contact a member of the Employment & Immigration team if you would like to discuss any issues in connection with vaccination, testing and a return to the workplace. Workbox by Brodies users will find guidance at the pages on Coronavirus.