Decisions made by employers during the course of the pandemic are progressing through the Employment Tribunal.
In the case of Allette v Scarsdale Grange Nursing Home Ltd it has been determined that the Claimant was fairly dismissed following her refusal to be vaccinated against COVID-19.
Facts
The Respondent is a family run nursing home, owned by Mr and Mrs McDonagh, specialising in residential care for dementia suffers. The Claimant was a Care Assistant for the Respondent and her duties included attending to the personal care needs of the residents within the home.
Following the government’s announcement in or around December 2020 to expedite the vaccination programme across nursing home residents and health care workers, the Respondent arranged for staff to have their first vaccination on 22 December 2020. However, as a result of a COVID-19 outbreak amongst both staff and residents, including the Claimant, the vaccinations were rescheduled for January 2021.
It was found that the Claimant only realised that she would be subject to disciplinary action if she refused to accept the vaccination, during a conversation on 12 January 2021 with Mr McDonagh. However, the Respondent stated that informal consultations regarding the vaccines began in December 2020, and it was the Claimant’s refusal to be included on the list with associated NHS numbers that triggered the Respondent to investigate further.
During the phone call on 12 January 2021, it was accepted that the Claimant’s reasons for refusal were that she “did not trust the vaccine” “she and her son…had read stories about it being unsafe” and that “no one could guarantee its safety”. However during the disciplinary hearing, chaired by Mr McDonagh, the Claimant referred to her religious beliefs as a practising Rastafarian and that she did not believe in unnatural remedies.
The Claimant insisted that she told Mr McDonagh of this fact during their conversation on 12 January 2021, although this was not recorded in the contemporaneous note of the conversation. Mr McDonagh felt that she was being dishonest when she insisted that she told him about the religious beliefs and that this was because she realised her reasons for refusal were not sufficient.
Mr McDonagh also told the Claimant that their insurers had advised that they would not provide public liability insurance for COVID-19 related risks after March 2021, if unvaccinated staff were found to have spread the virus to a resident or visitor. A similar provision was also introduced in regard to their employee liability insurance. The Respondent was concerned that the Claimant’s refusal to be vaccinated meant that as the only unvaccinated member of staff, it would be easier to trace transmission to her and result in insurance claims being refused.
Mr McDonagh dismissed the Claimant on the basis of her unreasonable refusal to follow his management instruction, after having given the Claimant a further opportunity to accept the vaccination and consider other alternatives.
The Claimant appealed this decision, which was subsequently dealt with as a full rehearing by Mrs McDonagh. The Claimant accepted, during the appeal hearing, that having the vaccine would reduce the risk of COVID-19 to people’s lives and health in the home. She reiterated her fears around the safety of the vaccination and that she only uses natural herb remedies. However, the Claimant did not refer to her religious beliefs.
Mrs McDonagh upheld the decision to dismiss the Claimant on the basis that the Claimant unreasonably refused to follow a reasonable management instruction and was guilty of gross misconduct. Mrs McDonagh also concluded that the Claimant’s acceptance that the vaccination would reduce the risk of death or serious illness, whilst still refusing to take it, was unreasonable and justified a dismissal for “some other substantial reason”.
Findings
The Tribunal made the following findings of fact:
- There was no contractual term or provision within the Respondent’s policies requiring the Claimant to have the COVID-19 or any other vaccine.
- The primary reason for the Claimant’s refusal to accept the vaccine was that she did not trust that the vaccine was “safe”. This was found to be based on conspiracy as opposed to reliable medical and/or scientific sources.
- The Claimant’s religious beliefs were not found to be part of the Claimant’s reason for refusing the vaccine. The Tribunal believed that if this had formed part of her reasoning, this would have been discussed during the call on 12 January 2021.
- The Claimant’s refusal to be vaccinated was not reasonable and she understood that her decision to remain unvaccinated would potentially put others at risk.
- The Claimant’s refusal amounted to gross insubordination/ refusal to carry out legitimate instructions and a serious breach of the rule requiring her not to take action which would threaten the health of others.
What does this mean for employers?
This case is a good example of how the Tribunal is likely to approach unfair dismissal cases relating to an employee’s refusal to be vaccinated. The Tribunal considered the Respondent’s decision-making process alongside the situation at the time, which was that the pandemic was escalating rapidly (as evidenced by a further nationwide lockdown imposed in or around January 2021) and there was widespread publicity around vaccine safety, which was relayed to the Claimant by the Respondent.
However, this was a first instance decision which is not binding and Employment Judge Bright confirmed within the Judgment that this decision “does not mean that a refusal to be vaccinated would amount to gross misconduct, or even misconduct at all, in another case on different facts.”
The Claimant’s timing when introducing her religious beliefs as a reason for refusal was also key in the facts of this case and employers should remain mindful that religion, race and/or philosophical beliefs are protected characteristics, amongst others (such as disability, pregnancy etc.) that may form part of an employee’s reasons for refusing the vaccine and as such, we recommend seeking advice and support before taking disciplinary action against such employees.
It is also important to note that since the facts of this case, the Government have introduced the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022, which took effect on 6 January 2022, to mandate vaccinations across the Health and Social Care Sector.
Support and advice
Our team of employment law experts have vast experience in supporting and advising employers with their People issues. If your organisation is in need of some Employment/HR guidance and support, please contact a member of our Employment Team who can assist.
This contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
Update: Since this article was published, the government has confirmed that it will be withdrawing the requirement for all care home staff to be vaccinated.
