Date updated: Friday 25th February 2022

The recent Employment Tribunal judgment of Allette v Scarsdale Grange Nursing Home Ltd has confirmed that the summary dismissal of a care assistant working in a nursing home, who refused to be vaccinated against COVID-19, was lawful. The Tribunal also confirmed that the interference with the worker’s right to privacy was justified.

Ms Allette (the Claimant) was employed by Scarsdale Grange Nursing Home Ltd (the Employer), a small family-run nursing home. The home provided residential care services for dementia sufferers and the Claimant delivered these services in her role as a care assistant from 3 December 2007 until her dismissal on 1 February 2021.

In December 2020 the roll-out of the COVID-19 vaccination programme commenced with a focus on the health and care sectors initially. Consequently, the Employer arranged for its staff to be vaccinated on 22 December 2020. This was delayed by an outbreak of COVID-19 at the home that led to residents and staff, including the Claimant contracting the virus. There was also a number of deaths among the residents following the outbreak.

Vaccination was rescheduled for January 2021, at which time no legislation had been implemented requiring mandatory vaccination in care homes. The Employer spoke to the Claimant at length regarding the vaccine stating that it was mandatory and that disciplinary action could be taken against her if she refused to be vaccinated. The Claimant stated that she was unwilling to receive the vaccine as she believed it to be unsafe. Moreover, she argued that she would be immune to the virus as she had recently contracted it. The Employer took advice from Public Health England and the Medical and Healthcare products Regulatory Agency, the advice contradicted the arguments put forward by the Claimant.

There was no specific provision in the Claimant’s contract of employment, nor within the disciplinary policy, that vaccination was mandatory or that disciplinary action could be taken where an employee refused vaccination. However, the Employer did have a policy in place which stated that a breach of the Unsatisfactory Conduct and Misconduct Rules, which required that any action taken by employees that threaten the health or safety of an employee, other employees, residents or members of the public, could constitute misconduct. Another of the Employer’s policies stated that an employee’s refusal to carry out legitimate instructions could also amount to misconduct.

Following the Claimant’s refusal to be vaccinated, she was suspended and was invited to attend a disciplinary hearing. The Claimant cited her religious beliefs and Rastafarianism as the reason for her refusal to take the vaccine. It was acknowledged that the Employer was unaware of the Claimant’s religious beliefs beforehand. It had also been explained to the Claimant that the Employer’s insurers would not provide public liability insurance for Covid-19 related risks after March 2021 and that after that date, the Employer faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. 

The Employer considered that it could not make an exception for one member of staff because not all residents could be vaccinated, the vaccine was not 100% effective and visitors to the care home might be unvaccinated. The Employer also genuinely believed the Claimant was dishonest when citing religious reasons for refusing the vaccine. The Claimant was summarily dismissed for gross misconduct on the ground that she had failed to follow a reasonable management instruction to be vaccinated.

The Claimant brought claims for wrongful and unfair dismissal.

The claims were dismissed on the following grounds:

  • The severity of the pandemic in December 2020, the outbreak in the care home and the advice of Public Health England at the material time rendered the decision to enforce mandatory vaccination a reasonable management instruction.
  • The Claimant’s refusal to be vaccinated, alleging the vaccine to be unsafe, was not reasonable given the recent outbreak at the care home and the public medical stance regarding the vaccine.
  • It was found that the Claimant’s actions amounted to gross misconduct, thus, the decision to dismiss her was fair and within the range of reasonable responses available to the Employer.
  • The dismissal was fair as the Employer genuinely believed the Claimant had committed gross misconduct and refusing to investigate further was within the range of reasonable responses available. The facts of the case and the Employer following the ACAS code throughout the disciplinary process were also contributing factors to the judgment in this case.

It was also found that mandating an employee to be vaccinated was an interference with the Claimant’s physical integrity. The Claimant’s refusal to become vaccinated would result in a loss of employment and that her right to privacy (Article 8 ECHR) was engaged as a result. Notwithstanding, the Tribunal noted that there were legitimate aims to mandate the vaccine including protecting health and safety, maintaining public liability insurance and also balancing the Article 8 rights of other staff, the care home’s residents and its visitors.

Tribunal decisions will always depend on the specific facts of the case at hand. That being said, the decision in Allette provides some measure of comfort to employers that dismissal for refusing a mandatory vaccination may be considered fair.

Employers should remember that the Employer in this case followed government guidance and took disciplinary action in line with its policies before dismissing, which contributed to the Tribunal’s view that the dismissal was fair. Consequently, employers should continue to follow their own policies and procedures to ensure any resulting dismissals are not deemed unfair.

It must be noted that had the Claimant brought a claim for religious discrimination under the Equality Act 2010 (EqA 2010) a different decision may have been taken. Employers should, therefore, be mindful of individual circumstances when making vaccination a requirement of employment. Failure to do so may lead to discrimination claims arising under the EqA 2010.

It must also be noted at the time of writing that the Health Secretary announced that ending the policy for mandatory vaccination in all health and care settings is under consultation. Employers should watch this development with caution and consider how to deal with employees that refuse to be vaccinated in light of this.