A tribunal has held in Allette v Scarsdale Grange Nursing Home Ltd that the employer was entitled to dismiss a care assistant who refused to be vaccinated. Although this constituted a contravention of her human rights, it was justified in the particular circumstances of the case when balanced against the pressing social need of reducing the health and safety risk to the home’s residents during the coronavirus (COVID-19) pandemic.
Basic facts
Ms Allette was a care assistant in the Scarsdale Grange Nursing Home (SGNH), a small, family firm run by a husband and wife team, Mr and Mrs McDonagh. In December 2020, the home planned to start vaccinating staff but had to postpone it after being hit by an outbreak of coronavirus (COVID-19). This resulted in 33 staff, including Ms Allette, and 22 residents contracting the illness, as well as a number of deaths. The programme was therefore rescheduled for January 2021.
During a telephone conversation on 12 January with Mr McDonagh, Ms Allette became aware for the first time that the vaccination programme was, in fact, mandatory. She said she did not want to have it because it had not been tested sufficiently and she could not be sure it was safe. Mr McDonagh explained to her that if she refused to have it, she would be suspended and disciplined.
Although there was no contractual term requiring her to have the COVID-19 or any other vaccine, the home’s misconduct rules stated that “no action is to be taken by you which could threaten the health or safety of yourself, other employees, residents or members of the public”.
At the subsequent disciplinary hearing on 28 January 2021, Ms Allette said for the first time that it would be contrary to her Rastafarian beliefs to have the vaccine. As she had not previously mentioned this, Mr McDonagh was disinclined to believe her, and he summarily dismissed her for refusing to follow a reasonable management instruction.
Ms Allette brought claims for unfair and wrongful dismissal and that her rights under Article 8 (respect for private and family life) of the Human Rights Act 1998 had been unjustifiably interfered with.
Human rights
The tribunal held that the circumstances of her dismissal, namely the requirement to have the vaccination unless she had a reasonable excuse, engaged her Article 8 right to private life. Although she could choose not to have the vaccine, she would lose her job if she did.
Next, the tribunal considered whether dismissal for failing to have the vaccine was justified, considering the rights and freedoms of fellow employees and members of the public under the European Convention on Human Rights. It found the instruction to be vaccinated had the legitimate aim of protecting the health and safety of residents, staff, and visitors to the home during the pandemic. Taking into account the circumstances at that time in early 2021, the history of outbreaks in nursing homes (and in the home itself), the tribunal found there was a pressing social need to reduce the risk to residents and as such interference with Ms Allette’s private life was justified. There were no other less draconian means of achieving the aim. In particular, there was no other alternative position for her, and it was not an option to put her on furlough.
Unfair dismissal
Rejecting the claim of unfair dismissal, the tribunal found that Mr McDonagh genuinely believed that Ms Allette had been guilty of misconduct. He did not believe that the real reason for her refusal was connected with any religious belief, but rather it was due to her scepticism about the vaccine itself.
Finding that the employer had sought to persuade Ms Allette of the vaccine’s safety by referring her to government guidance from Public Health England, and in light of the circumstances at the home (including the recent deaths), the tribunal found that the decision to dismiss for refusing to follow the management instruction to have the vaccine was within the range of reasonable responses.
Wrongful dismissal
The tribunal also rejected her complaint of wrongful dismissal. Having found that the requirement to have the vaccination was a reasonable management instruction, the tribunal found her refusal in the circumstances of this case amounted to a repudiatory breach of her contract of employment. Her employer was therefore entitled to summarily dismiss her.
Comment
This case, although the first tribunal decision of which we are aware, to consider a case of dismissal for refusing the COVID-19 vaccine, is particular to its facts and was at a time when the pandemic was at its height during another national lockdown. The tribunal made it clear that it was not making a rule that dismissal for refusing a vaccine would always amount to gross misconduct or that dismissal would always be fair, as that would depend on the particular circumstances of the case.