An employment tribunal has decided that the instant dismissal of a care assistant working in a nursing home who refused to be vaccinated against COVID-19 was not unfair dismissal or wrongful dismissal, and the interference with the worker’s Article 8 right to privacy was justified.
The facts of this case took place before 11th November 2021, the date from which all Care Quality Commission CQC regulated care homes in England have had to ensure that all care home workers were double jabbed vaccinated against Covid-19 or are exempt.
Ms Allette was employed by Scarsdale Grange Nursing Home Ltd (the employer), a small family-run nursing home providing residential care for dementia sufferers, as a care assistant from 3 December 2007 until her dismissal on 1 February 2021. Her role involved attending to the personal needs of the residents of the home.
In December 2020, the employer made arrangements for staff to be vaccinated against COVID-19 following the roll-out of the government’s vaccination programme to nursing home workers.
There was no provision in Ms Allette’s employment contract nor in the employer’s disciplinary policy requiring vaccination or regarding vaccine refusal. The employer’s disciplinary policy listed examples of gross misconduct, which included “gross insubordination/ refusal to carry out legitimate instructions” and “a serious or wilful breach of the Unsatisfactory Conduct and Misconduct Rules” (Rules). The Rules required 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”.
On 12 January 2021, the day before the vaccine was due to be administered to staff, a telephone conversation with her employer alerted Ms Allette to the fact that vaccination was mandatory and there was a risk of disciplinary action if she refused. During that telephone conversation, Ms Allette explained her reason for refusing the vaccine, which was that it was not safe. Ms Allette argued that, as she had recently contracted COVID-19, she was already immune. However, the information available to the employer at the time was that it was possible to contract the virus.
It was further explained that she would be suspended and face disciplinary action in the absence of reasonable grounds for refusing the instruction to be vaccinated. During the telephone conversation, she did not mention any religious belief as a reason for refusing vaccination.
Ms Allette was subsequently suspended and invited to a disciplinary hearing on the basis that she had refused to follow a reasonable management instruction to have the COVID-19 vaccination and that her reasons for refusing the vaccine were not reasonable in the circumstances. At the disciplinary hearing, Ms Allette repeatedly referred to her religious beliefs and Rastafarianism as the reason for her refusal to be vaccinated and accused her employer of discrimination. Her employer was not aware of her Rastafarianism before this time. In response to her employer’s challenge as to why she had not raised her religious beliefs in the telephone conversation of 12 January 2021, she repeatedly asserted that she had, before conceding that she had not. The employer believed that if Ms Allette had strongly held religious views, she would have stated this during the telephone conversation on 12 January 2021 and that she had raised them at the disciplinary hearing because she accepted that her reason (that the vaccine was unsafe) was not sufficient. As such, her employer did not believe that religious beliefs were the reason for Ms Allette’s refusal to be vaccinated.
During the disciplinary hearing, her employer explained that their insurers would not provide public liability insurance for COVID-19 related risks after March 2021. As a result, the employer faced the risk of liability if unvaccinated staff were found to have passed the virus onto a resident or visitor. There were similar issues around their employer’s liability insurance. Her employer explained that, as Ms Allette would be the only unvaccinated member of staff, it would make it easier to trace transmission to her and make legal action more likely. The insurers had also made it clear that they were expecting the employer to insist that all staff be vaccinated unless they could reasonably justify refusal.
On 1 February 2021, the employer summarily dismissed Ms Allette for gross misconduct on the ground that she had failed to follow a reasonable management instruction to be vaccinated.
The Tribunal Decision
In respect of the employer’s decision to require mandatory vaccination of its employees, the Tribunal said that in all the circumstances – in particular the state of the pandemic nationally, advice from the authorities and the insurers position – it was a reasonable management instruction to require staff to be vaccinated.
The Tribunal needed to consider whether it was reasonable for the claimant to refuse.
Her primary reason for refusing the vaccine was that she did not believe it to be safe, she did not trust what her employer or authorities were saying about its safety.
However, the tribunal did not accept that religious views were part of her decision making process. The Judge said that if they were, she would have raised the issue earlier.
The employer said that the refusal to comply with management instructions and breach company rules amounted to gross misconduct. Accordingly, the question for the Tribunal was then whether the decision to dismiss immediately without notice was unfair dismissal and/or wrongful dismissal.
In respect of unfair dismissal, again with the backdrop of the pandemic and advice from authorities, the Tribunal ruled that the dismissal was not unfair.
She was also not entitled to notice pay. The tribunal said that her breach of contract was so fundamental and fell in the examples of gross misconduct that the employer was entitled to summarily dismiss her.
Under the legislation, there is a statutory reason for dismissal to avoid these types of claims taking place.
I would still urge employers to be very careful about no jab no job policies particularly those not in the healthcare sector.