Was it unfair to dismiss a care assistant for refusing to get vaccinated against Covid-19?

While, at the time of writing the Government has announced that it is considering whether to revoke the regulations that aimed to make COVID-19 vaccination compulsory for all healthcare workers,  we thought we would share with you the Employment Tribunal (“ET”) decision in the case of Ms C Allette v Scarsdale Grange Nursing Home Limited, where the Tribunal considered whether the Claimant was unfairly and wrongfully dismissed for refusing to get the Covid-19 vaccine.

Background

In this case, the Claimant was employed as a Care Assistant at Scarsdale Grange Nursing Home Ltd (“the Respondent”), a family run nursing home providing residential care for dementia sufferers specifically. Following the Government’s announcement to make vaccination mandatory for those working in CQC regulated care homes and in advance of the introduction of the regulations, the Respondent made efforts to ensure their staff were able to become fully vaccinated.

The Claimant refused to get the COVID-19 vaccine. The Claimant explained that she did not trust that the vaccination was safe.  She also explained that she was a Rastafarian and it was against her beliefs to take any form of non-natural medication. The Respondent started a disciplinary process against the Claimant based on her refusal to get vaccinated which was deemed a failure to follow a reasonable management instruction. The Claimant was subsequently summarily dismissed on 1 February 2021 for gross misconduct.  The dismissal took place before the introduction of the regulations making COVID-19 vaccination compulsory in the care sector.

Following her dismissal, the Claimant submitted claims for unfair and wrongful dismissal, on the basis that she was not given notice of termination.

The Law

Section 94 of the Employment Rights Act 1996 (“ERA”) provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA.  Whether a dismissal is fair or unfair depends on whether the organisation acted reasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).

In determining whether a dismissal is fair, the Employment Tribunal will also consider whether a fair procedure was followed and whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal (i.e. did the decision to dismiss fall within the range of reasonable responses). This test applies to both the decision to dismiss and to the investigation which led to that decision.

Section 86(1) of the ERA provides for the statutory minimum notice period an employee is entitled to in the absence of an express notice period in their contact of employment. An individual’s contractual notice period cannot be less than the statutory minimum, but it can be more generous. Where an employer fails to give an employee the appropriate statutory or contractual notice on the termination of their employment, the employee can claim for breach of contract i.e., wrongful dismissal. Even where a dismissal is fair, it can still be held to be wrongful depending on the circumstances of the case.

Decision

The ET held that the Claimant’s dismissal was fair, she was neither unfairly nor wrongfully dismissed. The Tribunal held that both complaints were not well-founded. The Employment Judge concluded that the vaccination requirement for care home staff was a response to the pressing social need to reduce the risk posed to vulnerable adults and that due to the specific circumstances, and the recent outbreak and number of deaths in care homes at the time, the decision to dismiss the Claimant was within the range of reasonable responses available to the Respondent and compatible with her Article 8 right under the European Convention on Human Rights (“ECHR”).

Further, the Judge found that the Claimant’s decision not to get vaccinated was an unreasonable refusal to comply with a reasonable management instruction. Her reason for refusing to get the vaccine were solely based on scepticism and unsubstantiated views about the safety and efficacy of the vaccine rather than a strongly held religious belief preventing her from doing so. Therefore, because of this and the significant risk posed to the vulnerable adults in the nursing home, her refusal was sufficient to amount to a repudiatory breach of contract by the Claimant, entitling the Respondent to summarily dismiss her for gross misconduct.

Comment

This case is the first reported decision of a care worker being dismissed for refusing to get the vaccine, before it became a legal requirement to be vaccinated. It will be interesting to see how the tribunals will approach these cases in the future, particularly in a context where the Government is likely to revoke the regulations making vaccination mandatory for NHS staff and care home workers.

Importantly, the decision is fact specific as the judge clearly stated: “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.”  This should be borne in mind by all employers when faced with a similar situation. It is also important to remember that this is simply a first instance decision and not binding on any other tribunals.

Therefore, in situations like the above, it will remain critical to tread carefully when considering whether to introduce compulsory COVID-19 vaccination by first establishing a clear reason why vaccination is deemed necessary and always follow a fair process before dismissing employees who are not vaccinated and refuse to get vaccinated. If you have any doubt, feel free to contact us on 0191 282 2880.

Case reference: Ms C Allette v Scarsdale Grange Nursing Home Limited 1803699/2021

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Chambers and Partners