Care home worker fairly dismissed for refusing COVID-19 vaccination

News  |   21 January 2022

A woman working at a computer and wearing a mask
Written by
Lisa Rothon, Senior Associate Solicitor

The Employment Tribunal has found that the dismissal of a care home employee for refusing to be vaccinated against COVID-19 in January 2021, before the vaccination was mandatory in a care home setting, was not unfair.

In Allette v Scarsdale Grange Nursing Home Ltd, A worked as a care assistance in a nursing home providing residential care for dementia suffers.

Following the roll-out of the COVID-19 vaccine to nursing home residents and staff in December 2020, and after some delay due to a breakout of Covid within the home, the home began its vaccination programme in January 2021. At this point, there was no statutory obligation on care home workers to be vaccinated however, SGNH Ltd decided to make it a condition of continued employment. A only became aware of this on 12 January 2021, the day before her vaccination was due to be administered. A did not want to have the vaccine and explained her reasons in a telephone call on 12 January with M, one of the directors of SGNH Ltd. She stated that she did not trust the vaccine’s safety; that it had been rushed through without proper testing; that she had read stories on the internet about a Government conspiracy; and that no one could guarantee that it was safe.

A was invited to a disciplinary hearing on 28 January, during which she indicated for the first time to M that she had a religious objection to the vaccine based on her Rastafarianism. M explained to A that the home’s insurers had told him that they would not provide public liability insurance for COVID-related risks after March 2021 and that SGNH Ltd faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. Following the hearing, M concluded that A did not have a reasonable excuse for refusing the vaccine and that, if she remained unvaccinated, she would pose a real risk to the health of residents, staff, and visitors. He therefore decided that A should be dismissed for refusing to follow a reasonable management instruction. A claimed unfair and wrongful dismissal.

The tribunal rejected both claims. Considering firstly whether the dismissal breached A’s right to respect for private life under Article 8 of the European Convention on Human Rights, the Tribunal accepted that SGNH Ltd had a primary legitimate aim of protecting the health of staff, residents and visitors, and a secondary aim of not risking breaching its insurance policy. The tribunal noted that, while A was genuine in her fear of and scepticism about the vaccine, that fear and scepticism was unreasonable in the circumstances, as she had no medical authority or clinical basis for not receiving the vaccine. Balanced against this, SGNH Ltd was a small employer with a legal and moral obligation to protect its vulnerable residents and in this context the interference with A’s private life was proportionate.

Secondly, when considering whether SGNH Ltd acted reasonably in dismissing A in the circumstances, the tribunal concluded that it was reasonable for SGNH Ltd to conclude that an employee who was merely sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine. During the tribunal hearing, it was put to M that there was no tangible benefit to be derived from vaccinating A since she had recently recovered from the virus and would have antibodies. However, the tribunal accepted M’s evidence that the advice from Public Health England at the time was that it was possible to contract and transmit the virus more than once. In these circumstances, dismissal was within the range of reasonable responses.

Advice

If you require assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.

Related Insights