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Has the employment tribunal decision of
Allette v Scarsdale Grange Nursing Home given the green light for employers to dismiss employees who refuse to be vaccinated against COVID-19?
The employee in this case was employed as a care assistant in a family-run nursing home, which cares for dementia sufferers. The care home had planned for staff to be vaccinated in December 2020.A number of residents and staff contracted COVID-19 in December 2020, resulting in a number of resident deaths and a number of staff having to self-isolate. The planned vaccinations were postponed until January 2021.
In January 2021, the care home made being vaccinated a condition of continued employment.
The employee objected to having to take the vaccine. She cited concerns about the safety of the vaccine, that it had been rushed through testing and cited stories she had read on the internet about it being part of a government conspiracy. The care home manager listened to her concerns, explained how the vaccines worked and attempted to persuade her to have the vaccine. The Employee refused to take the vaccine.
At her subsequent disciplinary hearing to consider whether she should be dismissed for refusing to take the vaccine, the employee added a further objection on religious grounds.
The care home explained that their insurers might not cover them after March 2021 if all staff were not vaccinated and that it could be liable if unvaccinated staff passed the disease on to residents.
The employee refused to take the vaccine and was dismissed summarily for failing to obey a reasonable management instruction.
She brought tribunal claims against her former employer for unfair and wrongful dismissal. As part of her claim, she also asserted that her human rights had been breached.
The Tribunal found in favour of the care home.
The Tribunal found:
- Any interference with the employee’s private life was justified by the care home’s legal and moral duty to protect the health of staff, residents and visitors and not to breach the terms of its insurance. The tribunal also found that the employee’s concerns were not reasonable, as they were not based on any medical or clinical evidence;
- That dismissal for gross misconduct was fair and within the range of reasonable responses available to the employer. Of key importance was the tribunal’s conclusion that it was reasonable for the care home to find gross misconduct because the employee had not advanced any credible medical or clinical reason for not wishing to have the vaccine, had only raised religious objections at the last minute and because the care home was guided by the medical advice that was available to it at the time.
So, has this decision given the green light for employers to dismiss employees who refuse to take the COVID-19 vaccine?
Not necessarily and our view remains that making vaccines compulsory and dismissing employees who refuse to take them is extremely risky from a claims perspective.
Firstly, the tribunal explicitly said that the decision was not intended to have that effect and this decision may well be challenged.
Secondly, tribunals will consider each claim on a case-by-case basis. This case involved a high risk setting with vulnerable customers, the employer was concerned about the position with its insurers, the employer was acting on the basis of the official medical advice as it existed at the time and the employee had not advanced credible reasons for objecting to the vaccine and, when she did raise an objection that could have been credible, she did so at the last minute.
Thirdly, employees may well rely on developments such as weaker variants of COVID-19 and the government’s abandonment of the requirement for NHS staff to be vaccinated to argue that is no longer reasonable for employers to require vaccination in other less safety critical settings.
Finally, employees may advance medical, age related or religious objections at an early stage, meaning dismissal carries a high risk of discrimination claims.
The least risky option from an employment law / HR perspective is likely to be to keep the vaccines voluntary but, if you do decide to go down the road of making them compulsory, then you should consider each objection carefully on a case-by-case basis and take legal advice before making any decision to dismiss an employee.
Should you require any advice in this area, please contact Moore Kingston Smith HR Consultancy on 020 7566 3839.