With the prospect of employees returning to the office on a more permanent basis now that most of the Covid-related restrictions we have all been living under for almost two years have been lifted, the vaccination status of workers will be a live issue for many employers. In a previous blog, we considered whether an employee’s “anti-vax” views could amount to a “religious or philosophical belief” capable of protection under the Equality Act 2010. But what about when an employee’s fundamental right to choose not to accept a particular medical treatment conflicts with an employer’s requirement that all staff be vaccinated; would dismissal of an employee in those circumstances be fair?
That was one of the questions before an employment tribunal in the case of Allette v Scarsdale Grange Nursing Home Ltd. In a timely judgment, the tribunal found that the dismissal of a care home worker for refusing to be vaccinated against Covid-19 in January 2021 was not unfair. While the tribunal accepted that the employee’s fear of and scepticism about the vaccine was genuine, the requirement to be vaccinated was a reasonable management instruction and her refusal to do so was unreasonable as she had no medical authority or clinical basis for refusing.
The tribunal heard that the claimant, Cheeryn Allette, had worked since late 2007 as a care assistant in a nursing home run by the respondent, Scarsdale Grange Nursing Home Ltd, which provided residential care for dementia sufferers, until her dismissal in February 2021. In December 2020, the roll-out of the Covid-19 vaccine to nursing home residents and staff was due to begin. However, the home was hit with an outbreak in which 33 staff, including the claimant, were infected. 22 residents were also infected and there were a number of deaths. The vaccinations that were originally scheduled for the end of December 2020 were rescheduled for January 2021.
At the time there was no statutory obligation on care home workers to be vaccinated, but the respondent decided to make it a condition of continued employment. However, the claimant only became aware of this the day before her vaccination was due to be administered. The claimant did not want to have the vaccine and explained her reasons to management. 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.
Following her refusal to comply with the requirement she was invited to a disciplinary hearing, where she indicated for the first time that she had a religious objection to the vaccine based on her Rastafarianism. However, it was explained to her that the nursing home’s insurers would not provide public liability insurance for COVID-related risks after March 2021 and that the respondent therefore faced the risk of liability if unvaccinated staff were found to have passed the virus on to a resident. The respondent ultimately concluded that the claimant did not have a reasonable excuse for refusing the vaccine, they could not make an exception for one member of staff and if she remained unvaccinated, she would pose a real risk to the health of residents, staff and visitors. The claimant was accordingly dismissed for gross misconduct for refusing to follow a reasonable management instruction.
She brought a claim for unfair and wrongful dismissal, but the tribunal rejected both claims. It considered first whether the dismissal breached her right to respect for private life under Article 8 of the European Convention on Human Rights, but balanced this against the respondent’s primary legitimate aim of protecting the health of staff, residents and visitors, and its secondary aim of not risking breaching its insurance policy. In the tribunal’s view, the mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents. While the claimant had a genuine fear of and scepticism about the vaccine, that fear and scepticism was unreasonable in the circumstances, since she had no medical authority or clinical basis for not receiving the vaccine. Given the nature of the respondent’s business and the vulnerability of its residents, the interference with the claimant’s private life was proportionate.
In considering the reasonableness test under section 98(4) of the Employment Rights Act 1996, the tribunal concluded that it was reasonable for the respondent 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. The tribunal found that the respondent genuinely did not believe that the claimant’s refusal was connected with religious belief. It also rejected the claimant’s argument that the respondent had unreasonably failed to refer her to independent scientific sources of information and failed to properly address her scepticism, as the respondent had referred her to advice from Public Health England (PHE) and the Government, which was widely available online. In these circumstances, the claimant’s refusal to be vaccinated amounted to a repudiatory breach of her contract of employment and her dismissal was within the range of reasonable responses.
In November 2021 the Government introduced legislation which imposed compulsory vaccination for persons working or providing professional services in a care home setting in England. It is important to note that this requirement does not apply in Scotland. Readers should also bear in mind that a decision of the employment tribunal is not binding. Should this or another similar-fact case reach the Employment Appeal Tribunal however, that will provide authoritative guidance. In the meantime, the judgment does nonetheless give an indication of the tribunal’s approach to the vexed issue of vaccine status and the factors to be taken into account when determining future cases. The decision will therefore be of interest to private sector employers considering the introduction of mandatory vaccine policies for their staff.
Insight from Chris Phillips, Employment Law Partner. For more information contact Chris or any member of the Employment team on 03330 430350.
