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Healthcare employees refusing to be vaccinated – what can the employer do?

In what may likely become a landmark judgment, an employment tribunal has concluded in the case of Allette v Scarsdale Grange Nursing Home Ltd that the employer’s decision to dismiss an employee for refusing to comply with the request that she be fully vaccinated against COVID-19 was not an unfair dismissal.

Case Background

The claimant, Ms Allette, worked as a care assistant in the nursing home owned and operated by the respondent, providing face-to-face and direct care for service users with dementia.

In December 2020, the nursing home had arranged for an external clinician to attend the home to deliver vaccinations to all employees, set as a condition of employment.

However, before this vaccination clinic could take place, there was an outbreak of COVID-19 at the care home, with 33 staff members (including Ms Allette) and 22 residents infected with the virus. Some of the residents sadly died.

Following this outbreak, the vaccination clinic was rescheduled to 13th January 2021. Ms Allette claimed that she only became aware of the vaccination clinic on 12th January 2021. It was on this same day that she telephoned one of the directors of the care home (Mr M), to explain she did not wish to be vaccinated as she held the opinion that the vaccinations were unsafe. She said that she believed they had been rushed through without rigorous testing, and her concerns were exacerbated by conspiracy theories which she had read online.

She was subsequently invited to a disciplinary hearing on 28th January 2021.

During that hearing, she raised for the first time with her employer her religious objection to receiving the COVID-19 vaccine, based on her Rastafarianism. Mr M had no prior knowledge that Ms Allette was a practising Rastafarian and explained that the care home’s public liability insurance would not insure the care home for COVID-19 related incidents beyond March 2021. The care home had assessed the degree of risk if an unvaccinated staff member was found to have passed COVID-19 to a resident or visitor. To mitigate that risk, it was felt that vaccinating all staff members was a proportionate means to achieve this.

Following the disciplinary hearing, Mr M concluded that Ms Allette did not have a reasonable explanation for refusing the COVID-19 vaccination and believed her unvaccinated status would pose a degree of risk to staff, residents and visitors.

Although having taken into account that not all residents could be vaccinated, some visitors might be unvaccinated and the vaccines were not 100% effective, Mr M chose to dismiss Ms Allette for refusing to follow a reasonable management instruction.

Ms Allette issued a claim for both unfair dismissal and wrongful dismissal via the Employment Tribunal.

What did the tribunal decide?

The Employment Tribunal rejected both of the claims brought. In making their decision, they examined whether the dismissal had breached the European Convention on Human Rights, specifically Article 8 which affords the right to respect for private life. The tribunal concluded that the respondent had a “primary legitimate aim of protecting the health of staff, residents and visitors, and a secondary aim of not breaching its insurance policy”. The tribunal found that when taking all of the facts of the situation into account, this interference with her private life was proportionate.

The tribunal also said that the vaccination policy which Mr M had implemented was in line with a pressing social need to reduce the risk of residents contracting COVID-19, along with the care home’s legal and moral obligations to protect its vulnerable residents.

The tribunal did note that Ms Allette’s fears around the vaccine appeared to be genuine. However, those fears and scepticism raised by her about the vaccine were unreasonable as she had “no medical authority or clinical basis for not receiving the vaccine”.

The tribunal also considered the test under section 98(4) of the Employment Rights Act 1996, to determine the reasonableness of the decision to dismiss Ms Allette for failure to follow a reasonable management instruction.

They concluded that the respondent did not genuinely believe that Ms Allette’s refusal was because of her religious beliefs, due to the way the point was raised for the first time at her disciplinary meeting. Secondly, the respondent had provided her with referrals to advice from Public Health England (PHE) and the Government which was easily accessible at the time on the internet and which she was clearly capable of researching herself. The tribunal concluded that “it was reasonable for SGNH Ltd [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”.

During the tribunal proceedings, a final argument was also raised by Ms Allette that as she had contracted COVID-19 in January 2021, there would be no tangible benefit to her receiving the vaccination because she would already have antibodies from the virus. The tribunal accepted that the evidence from Public Health England at the time showed that it was possible to contract and also transmit COVID-19 on more than one occasion.

For all these reasons, the tribunal concluded the dismissal in this case was within the band of reasonable responses.

Lessons learned from this case

When considering this case, it is important to recall the situation nationally when the care home took the decision to implement vaccinations for its workforce.

In January 2021, the government had not yet introduced any statutory regulations for care home workers to be vaccinated. They would not be introduced until 11th November 2021, following a 16-week grace period. Therefore, this case is unique, given that the respondent was implementing this policy by their own choice and not following statutory regulation.

In January 2021, cases of COVID-19 were at an all-time peak of 151,000 and the COVID-19 vaccinations had just started to be rolled out in a full UK-wide vaccination drive. Those prioritised included those over 80, people who were extremely clinically vulnerable and key healthcare workers such as those who worked in care homes.

The key point from this case is that employers always need to ensure that the correct procedure is followed in full, any outcome is always within the band of reasonable responses and any dismissal is issued under the correct category.

Although in this case, Ms Allette was dismissed for failure to follow a reasonable management instruction, it would be our recommendation now that the dismissal is for being in breach of a statutory regulation, given that the amendments to the Health & Social Care Act have made COVID-19 vaccinations a condition of employment in care homes and some healthcare settings delivering direct or face-to-face contact.

It is always important for employers to remember that each case is tested on very specific and unique facts and therefore, it should not be assumed that every dismissal in such circumstances would automatically be found fair. However, this case does provide us with some much-needed insight into the opinions of the Employment Tribunal.

There is a full toolkit available on rradarstation which covers both processes for implementing as a statutory regulation and condition of employment, COVID-19 vaccinations in care homes and in face-to-face patient NHS & Healthcare settings.