An Employment Tribunal recently held that the dismissal of a care home worker for refusing to be vaccinated against COVID-19, prior to the mandatory vaccination legislation for care homes in England, was fair. The requirement to be vaccinated was a reasonable management instruction and the Claimant had no medical authority or clinical basis for refusing.
With the U-turn on mandatory evidence of vaccination in the wider health and social care sector in England, and the care home vaccination legislation in England due to be abolished, the decision in Allette v Scarsdale Grange Nursing Home Ltd has become highly significant not only in the care sector (particularly care homes), but also for any employer considering a mandatory vaccination policy. However, it is important to note right from the start that the case turned on very specific facts at the time of the dismissal in February 2021, which would not necessarily apply now to other care homes, let alone employers with different health and safety concerns.
The case raised a number of significant legal issues including:
- Article 8 of the European Convention on Human Rights (“the Convention”). This provides that everyone has the right to respect for his private and family life, his home and his correspondence. This is a qualified right that can be interfered with where there is justification, for example, for the protection of health or morals, or the protection of the rights and freedoms of others. Justification includes having a “legitimate aim” and that aim being implemented proportionately in the context of the interference to any Convention rights.
- Section 3 of the Human Rights Act 1998 (“HRA”) provides that legislation such as the Employment Rights Act 1996 (“ERA”) must be read in a way which is compatible with the Convention rights.
- Section 98 ERA provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal and that they acted reasonably in the circumstances.
The Claimant, Ms Allette, worked as a care assistant at a care home (the Respondent) that provided residential care for people suffering from dementia. The care home was privately owned by Mr and Mrs McDonagh and there were around 65 permanent staff.
The Claimant commenced employment in December 2007 and she was summarily dismissed on 1 February 2021 for gross misconduct.
Unlike many other care homes, the Respondent’s care home had no outbreaks of COVID-19 until December 2020. That same month, the Government announced the roll out of the COVID-19 vaccine programme to nursing home residents and health workers. Note that this was different to, and prior to the mandatory care home vaccination legislation in England (introduced in November 2021).
The Respondent arranged for its staff to be vaccinated on 22 December 2020. However, this had to be cancelled due to a COVID-19 outbreak when 33 staff, including the Claimant, and 22 residents became ill. Some residents died.
Mr McDonagh then rescheduled the vaccinations for 13 January 2021. The staff had previously been encouraged, but not required, to have annual flu vaccinations but there was nothing in the Claimant’s contract of employment which expressly required her to have vaccinations. Further, there was nothing in the disciplinary policy concerning vaccine refusal.
On 12 January 2021, the Claimant was informed, during a telephone conversation with Mr McDonagh, that the vaccination was required and there was a risk of disciplinary action if she refused. She explained that she did not want the vaccination because she did not trust that the vaccine was safe as it had been rushed through without being properly tested. She did not refer to any medical authority or clinical basis for that belief. Mr McDonagh tried to reassure her on the basis of information he had been given by Public Health England and the Government’s regulatory agency about the safety of the vaccine and its effectiveness both in preventing infection and onward transmission. The Claimant was the only staff member refusing the vaccination. The Respondent said during the call that she would be suspended and disciplined if she did not have the vaccine.
The Claimant was subsequently suspended and asked to attend a disciplinary hearing via Zoom. The allegation was that she had refused to follow a reasonable management instruction to have the COVID-19 vaccination and that her reasons for refusing it were not reasonable in the circumstances. The disciplinary hearing took place on 28 January 2021. At that hearing, the Claimant repeatedly referred to her religious beliefs and Rastafarianism as the reason for her refusal to take the vaccine, although this had not been mentioned during the telephone call.
Significantly, at the disciplinary hearing, Mr McDonagh explained to the Claimant that the care home’s insurers had told him they would not provide public liability insurance for COVID-19 related risks after March 2021 and the Respondent would be liable if unvaccinated staff passed the disease on to a resident or visitor. The insurers had made it clear that they were expecting all staff to be vaccinated unless they could reasonably justify refusal. There were similar issues about employer’s liability insurance.
Mr McDonagh wrote to the Claimant on 1 February 2021 informing her that she was summarily dismissed for gross misconduct because she had failed to follow a reasonable management instruction to be vaccinated. Her appeal against dismissal, which was a complete rehearing of the disciplinary matter by Mrs McDonagh, was unsuccessful. The Claimant then brought claims for unfair and wrongful dismissal.
Employment Tribunal decision
Both claims were dismissed. The Employment Tribunal held that the Respondent acted within the range of reasonable responses and, taking account of the Claimant’s Article 8 rights, dismissal was proportionate in the circumstances.
The Employment Tribunal took into account that Mr McDonagh had to make decisions on the evidence available to him at the time of the disciplinary proceedings. He genuinely did not believe the Claimant had a reasonable excuse for refusing the vaccine. Being unvaccinated meant she would pose a real risk to the health or lives of residents, staff and visitors to the home. He took the view that he could not make an exception for one member of staff because not all residents could be vaccinated. Putting the Claimant on furlough was not an option and there was no alternative position for her which could avoid her coming into contact with others.
Looking at the specific issue of Article 8, the Employment Tribunal found that an employer’s instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the Convention rights under Article 8. In this case, the Claimant faced disciplinary action and dismissal because she would not have the vaccine. Although no one was forcing her to have the vaccine (because she had the option to remain unvaccinated), this would mean losing her job. The key question for the Employment Tribunal was whether there was justification for interference under Article 8. In other words, was dismissal for a refusal to have the vaccination justified?
The Employment Tribunal held that it was. The Respondent had a legitimate aim to protect the health and safety of residents, staff, and visitors to the home during the pandemic. It also accepted that a second legitimate aim was concern about the withdrawal of insurance cover. The requirement for the staff to be vaccinated corresponded to a pressing social need, which was to reduce the risk to the residents, who were among those most vulnerable to severe illness and death through catching COVID-19. Accordingly, interference with the Claimant’s private life in requiring her to have the vaccine was therefore necessary in the circumstances of this case.
The Article 8 rights of the residents, the other staff and any visitors to the home needed to be balanced with the Claimant’s Article 8 rights and in the circumstances, the requirement to have the vaccine and the Claimant’s dismissal was justified by reference to Article 8. It was a proportionate interference with the Claimant’s Article 8 right, because of what compulsory vaccination was likely to achieve in the circumstances known at the time; the inability to put her on furlough; the fact that not all residents could be vaccinated; the Claimant’s unreasonable refusal of the vaccine and acknowledgement of the risk she posed; and the imminent withdrawal of insurance cover.
As for the wrongful dismissal claim, the refusal to be vaccinated amounted to a repudiatory breach of the Claimant’s contract of employment and the Respondent was entitled to summarily dismiss her.
What conclusions can employers take from this case?
Although only at Employment Tribunal level, this case is highly significant, since it took place in the context of there being no legislation requiring vaccination in care homes, and also because it addresses the argument, which could well be raised by other employees where a mandatory vaccination policy is introduced, about the interference with Convention rights.
However, it must be noted that it was based on the circumstances at the time in January 2021 during a third national lockdown, which included what the employer knew about the effect of COVID-19, the effectiveness of the vaccine, and a death rate of 1,500 people per day. It is not at all clear that a similar approach would be taken in the light of emerging evidence of the lower risk of hospitalisation and mortality from the COVID-19 Omicron variant alongside the effectiveness of a two-dose vaccine course without a booster dose. It is this new evidence which resulted, on 31 January 2022, in a Government U-turn on making vaccinations compulsory both in care homes in England and the wider health and social care sector.
It is worth pointing out that the Employment Tribunal judge specifically stated that:
My decision in this case is based entirely on the facts of this case and cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair.
He also commented earlier in the judgment that whilst in this case, in the circumstances, he had found that the Claimant’s actions amounted to gross misconduct, that did not mean that a refusal to be vaccinated would amount to gross misconduct, or even misconduct at all, in another case on different facts.
Therefore, it could be hard for any employer, even care homes, to rely on current circumstances in relation to COVID-19, both in relation to the efficacy of current vaccines and the lower risk posed at the time of this article, to justify a compulsory vaccination policy. Without legislation underpinning such a policy, there are also significant risks of discrimination claims. It is unclear whether such an instruction would now even be held to be a reasonable management instruction, a year on from this case. Other measures could be put in place such as encouragement to take up the vaccine, regular testing, and ensuring the workplace is COVID-secure as per current guidance. Further details on some of the issues and risks in imposing a vaccination policy can be found in our separate article on mandatory vaccinations here.
With so many restrictions having been relaxed in all the devolved nations, especially England, an instruction to be vaccinated in the current climate may also amount to a disproportionate interference with Convention rights. However, it is not impossible, and care homes and other venues where there is a high risk to vulnerable individuals could seek to justify it on health and safety grounds (and perhaps in relation to insurance policies) depending on the individual circumstances. Please seek our advice if you are considering such a policy.
Once the relevant regulations are revoked in the near future, care home employers will be unable to rely on the grounds of “breach of a statutory restriction” as the reason for dismissal, and should not attempt to rely on it from the date of the Government’s announcement on 31 January 2022. Again, please see our advice.
It is important for employers to understand that mandatory vaccinations for workers remains a very risky policy unless there are compelling reasons.
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