NEWS & RESOURCES

Was a dismissal of an unvaccinated care worker because of their vaccination status fair?

What is the case about?

This is a case that deals with whether an employer can fairly dismiss an employee for their failure to become fully vaccinated against COVID-19.

Context

For this case, it is essential to place context around the events of what happened.

This is perhaps the first case that tests the position of requiring an employee to evidence their full COVID-19 vaccination status. This ruling is in no way legally binding on employers and we must still bear in mind that each case will have its own set of specific circumstances to determine what is fair and reasonable in the situation.

This is also a case that is based within the health and social care sector, and so the context in which the managers made decisions will be very different to other sectors and so, a decision for one employer may not be appropriate for another.

A further important point is that at the time of the dismissal occurred, it wasn’t a legal requirement on the care home provider to require an employee to evidence their full COVID-19 vaccination status, this piece of legislation came into force much later. It raises questions therefore whether the ruling and the reasons for it, could be considered within a non-care home environment, but which had similar risks associated to members of the public and colleagues.

Given the challenges surrounding the matter of mandating vaccines we would urge seeking HR advice before considering this approach as it comes with risk. Risks arise not just from a potential discrimination perspective, but there could also be breach of a person’s human rights and their right to privacy.

The circumstances

This is a case (Ms Allette vs Scarsdale Grange Nursing Home Ltd) where a care home instructed a care assistant to become vaccinated against COVID-19, even though there was no contractual term to require it; instead it needed to be based on a reasonable management instruction that they would be giving.

To argue it was a reasonable management instruction, the employer had deemed that there was a risk of liability on the part of the care home in the event of a resident or visitor contracting COVID-19 from unvaccinated employees. They had been able to determine that except for Ms Allette, all employees had already become vaccinated. They also established that their own insurers would not provide insurance to them through the public liability insurance because it did not cover COVID-19 related deaths.

Given there was no contractual clause requiring mandating vaccinations, and there was no legislation in place at that point to do so either, the care home was taking a voluntary decision to mandate it. In discussing the matter with Ms Allette, she put forward her concerns around the safety of the vaccine and claimed she had spoken to them about how the vaccination goes against her religious Rastafarian beliefs.

Although the care home disputed this was her real reason for failing to receive the vaccine as she only raised this late into the process. Ms Allette also believed that because she had recently suffered with COVID-19 herself, she would be sufficiently protected.

The employer therefore undertook a disciplinary process for her alleged failure to follow a reasonable management instruction. During the process Ms Allette argued her religious beliefs prevented her from becoming vaccinated and also put forward her view that because she was the only employee unvaccinated, she would not be deemed a risk to those who had chosen to be protected with the vaccine.

Following due process, the care home dismissed her considering the known risks on both residents and visitors and liability for the care home, if they continued to allow her working there.

The judgement

The employment tribunal have ruled that the dismissal was fair because Ms Allette had acted unreasonably. She failed to provide medical evidence to support her decision to not become vaccinated or her perceived concerns over the vaccine itself. They also accepted the care home’s position that her refusal had any connection to a religious belief.

The tribunal also ruled that the instruction to require the vaccine as part of continued employment was proportionate in the context of the claim that it interfered with her private life. This was because of the nature of the care home’s business and vulnerability of the residents they provided care to.

The tribunal also focussed on the fact that there was a pressing need for the care home to take steps to reduce the spread of the virus and took on board the current state of the pandemic at the time of the dismissal, and the very difficult and challenging period faced by care homes early in the pandemic.

The judge felt that to require Ms Allette to become vaccinated was necessary in the circumstances of the case and her argument that because she had recently suffered from COVID-19 was not found to be reasonable and would therefore not provide sufficient protection.

The judge did however comment that had there been legitimate medical reasons why Ms Allette had not been vaccinated, this could have resulted with a different outcome.

A further important point noted by the tribunal was that the employer had maintained thorough written records regarding the disciplinary process compared to those kept by Ms Allette.

Learning points

This case highlights the importance of:

  • Understanding the context within which your business operates and emphasises the need for any reasonable employer to consider when making a policy mandatory if it is proportionate when it comes to considering if it is an interference on somebody’s private life.
  • That consideration must be given to whether there is a medical reason as to why the person is not having the vaccine.
  • Maintain thorough records of the disciplinary process as well as any enquiries made as part of establishing facts (in this case, contacting insurance provider)

Further information

For more information please don’t hesitate to Contact Us

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