Posted: Wed 2nd Feb 2022
Since 11 November 2021 the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (“Regulations”) has made it compulsory for all staff working or deployed to work in a care home in England to have completed a course of a UK-authorised Covid-19 vaccine.
Before the introduction of the Regulations there was uncertainty was to whether an employer within the care industry could demand their employees be vaccinated, and for employers in other areas of the economy, this uncertainty still remains.
A recent case, which arose before the introduction of the Regulations, has given some guidance on the approach that will be taken by the Employment Tribunals in circumstances where vaccines are refused by staff but required by employers.
In the case of, Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021, a Care Assistant employed at a small family run nursing home was dismissed for refusing receive the Covid-19 vaccine in February 2021.
The Claimant was employed at Scarsdale Grange Nursing Home Limited (“Scarsdale”) providing residential care for dementia suffers. Scarsdale made arrangements for employees to have their first vaccination in December 2020, but the home suffered an outbreak of Covid-19 in which 33 staff (including the Claimant) and 22 residents were infected, leading to a number of resident deaths. Vaccination plans were re-scheduled for January 2021.
At the time there was no statutory obligation for care home workers to be vaccinated but, following the outbreak and a notification from Scarsdale’s insurance provider stating that they would no longer provide public liability insurance for Covid-19 related losses, it introduced a policy which made vaccination a condition of employment.
The Claimant was informed by a director of Scarsdale, Mr McDonagh, that if she did not get vaccinated she would face disciplinary action. This occurred 24 hours before her vaccination was due to take place and during the conversation the Claimant became emotional and refused to receive it, claiming she believed the vaccine’s development had been rushed and was not safe. Additionally, she argued that she already had immunity to the virus (having just recovered from it) and stated that she believed the vaccine roll out was a ‘government conspiracy’.
At the Claimant’s disciplinary hearing, she asserted for the first time that she could not take any form of ‘non-natural’ medication because she was Rastafarian. It was explained to the Claimant that Scarsdale’s vaccination policy had been introduced to protect health and safety of everyone at the nursing home, including visitors and because of the liability risk that it faced without insurance cover for Covid-19 related losses.
Mr McDonagh determined that the Claimant did not have a reasonable excuse for refusing the vaccine. The Claimant was dismissed without notice on 1 February 2021 for gross misconduct for failing to follow a reasonable management instruction.
The Claimant claimed unfair and wrongful dismissal and argued her right to respect for her private and family life under Article 8 of the European Convention of Human Rights had been unjustly interfered with. She did not assert a discrimination claim on the basis of her ‘religion or belief’.
The Employment Rights Act 1996 (the “ERA”) provides that where an employee with qualifying service is dismissed, the dismissal will be unfair unless:
the employer shows that the dismissal was for a potentially fair reason; and
in the circumstances the employer acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal.
A Tribunal must determine objectively whether dismissal fell within the range of reasonable responses available to the employer.
Article 8 of the European Convention on Human Rights (the “Convention”) is invoked because so far as it is possible, legislation (the ERA in this instance) must be read in a way which is compatible with the Convention which provides that:
everyone has the right to respect for his private and family life, his home and his correspondence; and
there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Tribunal found, on balance, that Scarsdale had acted within the range of reasonable response of a reasonable employer and, taking account of the Claimant’s Convention rights, when weighed against the Convention rights of the residents, other staff and visitors, the dismissal was proportionate and fair in the circumstances.
Whilst there was no discrimination claim to consider, the Tribunal did consider the reasons for the refusal and whether or not it was on religious grounds; it determined that refusal to follow a reasonable management instruction which amounted to gross misconduct was the reason for the dismissal and that Mr McDonagh genuinely did not believe that the Claimant’s refusal was on the grounds of her religion or belief.
The Tribunal did acknowledge that Scarsdale could have given the Claimant further opportunities to change her mind and/or placed her on unpaid leave for a period whilst they sought to persuade her, and/or could have sought further independent scientific information or material to seek to persuade her that the vaccine was safe and necessary. Nevertheless, this did not change the Tribunal’s ultimate opinion that no reasonable employer would not have acted as Scarsdale did in the circumstances.
The Tribunal found that the Claimant’s refusal to be vaccinated was an unreasonable refusal to comply with a reasonable management instruction and her actions fell with the definition and examples of gross misconduct set out in Scarsdale’s disciplinary policy. Accordingly Scarsdale was entitled to summarily dismiss her.
This judgment emphasises the fact that Tribunals will consider each case in the round. The decision that the dismissal was fair was not based on the insurance position alone but rather, it was one of a number of prevailing factors which also included:
the fact that there had been a recent outbreak of Covid-19 at the home which had led to deaths;
the state of the pandemic at the time;
the level of on-going risks to residents, staff and visitors;
the information from Public Health England; and
the fact that Scarsdale is a small employer with limited resources for redeployment.
Employers may be forgiven for seeing this as a green light to terminate ‘difficult’ employees who do not wish to participate in the uptake of the Covid-19 vaccine.
However, this judgment can only provide limited comfort to employers and caution is still advised. This was a small privately run care home with limited resources for redeployment, an inability to work from home and was in the context of decisions taken at the peak of the pandemic following withdrawal of Covid related insurance cover and a series of deaths of residents.
Each case will turn on its own facts and an employer will need a reasonable and genuine reason to require its employees to be vaccinated and will need to consider carefully an employee’s reasons for refusing as this may give rise to possible claims which were not considered fully in this particular instance, such as discrimination.
If you have any queries about this topic, please contact Elliot Francis by connecting with him on Enterprise Nation.