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Kerry Eastman

HR Advisor - Uckfield

23rd February 2022

Unvaccinated Employee Employment Tribunal Case: Allette v Scarsdale Grange Nursing Home Ltd

Unvaccinated Employee Employment Tribunal

CASE: Allette v Scarsdale Grange Nursing Home Ltd

Gross Misconduct? Within the Range of Reasonable Responses? Or Unfair and an Invasion of the Right to Privacy and – a Breach of Contract ? In what is believed to be the first decision of its kind, an Employment Tribunal (ET) has recently ruled in favour of an employer following Unfair Dismissal and Wrongful Dismissal claims brought by a (COVID-19) unvaccinated employee.

Background

Ms Allette, a Care Home Assistant, had been employed by Scarsdale Grange Nursing Home Ltd, since 3 December 2007.

In December 2020, the company were due to roll out the COVID-19 vaccination to both nursing home residents and employees however, after a COVID-19 breakout resulting in 33 employees, including Ms Allette, testing positive for the virus and some residents losing their lives, the roll-out was postponed until January 2021.

Despite the statutory obligation for COVID-19 vaccinations not coming into place until 11 November 2021, the company deemed their staff vaccination roll-out necessary for the primary legitimate aim of protecting the health of staff, residents and visitors in the pandemic (in accordance with Public Health Rules) and, the secondary aim of not risking a breach of two of its insurance policies.

On 12 January 2021, the day before staff were to have their vaccination, Ms Allette was advised by her employer that it was mandatory to have the vaccine and that if staff did not have it they would be subject to disciplinary action, for reasons which were explained. As she did not want the vaccine, Ms Allette telephoned Mr McDonagh, a Director, and explained that she did not trust the safety of the vaccine, had read stories about it being unsafe, explained that she believed it to be a conspiracy and that no one could guarantee its safety. Ms Allette subsequently failed to attend her vaccination appointment.

On 28 January 2021, the company invited Ms Allette to a disciplinary hearing for refusing to follow a reasonable management instruction. During the hearing Ms Allette said she had a religious objection to the COVID-19 vaccine based on her Rastafarianism – something which she had not made the company aware of previously and particularly not at the time when she had telephoned Mr McDonagh to give him her reason for not having the vaccine. Mr McDonagh explained during the hearing that the company’s insurance would not provide public liability insurance for COVID-19 related risks after March 2021 and the company would face risk of liability if unvaccinated employees passed the virus onto a resident or a visitor.

Mr McDonagh concluded that Ms Allette did not have a reasonable excuse for refusing the COVID-19 vaccine and that without the vaccine she posed a real risk to the health and safety of her colleagues, residents and visitors and, that her refusal was a breach of health care rules that required her not to take action, which would threaten the health of others. Ms Allette was later dismissed from her employment for refusing to follow a legitimate and reasonable management instruction which amounted to gross misconduct under the Company’s Disciplinary Procedures.

Decision

The Employment Tribunal rejected both of Ms Allette’s claims (Unfair and Wrongful Dismissal) accepting that the company’s decision to dismiss Ms Allette was within ‘the range of reasonable responses’ and, was not unfair. The Employment Tribunal held that the employer had a legitimate aim in implementing the COVID-19 vaccine policy. It accepted that Ms Allette had genuine fears regarding the vaccination but stated that her fears were not reasonable in view of the very recent outbreak and deaths of residents at the nursing home, the growing pandemic and the widespread publicity and advice about vaccine safety, which was relayed to her by her employer. In addition the fears were not reasonable as she had no medical exemption for receiving the vaccine.

The deciding Judge explained that the decision in this case, cannot and should not be taken as a general indication that a dismissal for refusing to be vaccinated against COVID-19, will be fair. The decision in this case was made in relation to the particular facts of the case.

NOTE: Employment Tribunals which decide unfair dismissal cases have a duty to act in accordance with Articles of the European Convention on Human Rights (ECHR) and interpret domestic legislation in accordance with the Articles. Article 8 of the ECHR provides that everyone has ‘the right to respect for private life’. Justification of interference with this right, involves considering whether the interference was necessary in a democratic society, the legitimate aim of the interference, and the proportionality of the interference to the legitimate aim being pursued. In the Allette case the ET decided that the ‘interference’ by her employer, with her Article 8 right to privacy, was justified. Therefore, there was no infringement of Ms Allette’s human rights.

What does the outcome of the Employment Tribunal decision mean?

Employers should be mindful that the only sector to currently have a mandatory vaccination programme is the care sector. From 11 November 2021, care homes must only employ individuals who are fully vaccinated against COVID-19 (or exempt entry inside of a care home).

Subject to Parliamentary approval, CQC-regulated health or social care staff will be required to be fully vaccinated with enforcement potentially in place as soon as 1 April 2022.

For all other sectors, the COVID-19 vaccine is not mandatory and cannot be forced upon staff.

As part of the duty to protect the health and safety of  staff, employers may find it useful to talk with their employees about the vaccine and/or share Government updates relating to the vaccine as a way of encouraging employee’s to be vaccinated. We would advise employers to show that they are open to discussions with individual employees about any reluctance they have concerning having a COVID-19 vaccination and to fully consider any concerns they raise relating to COVID-19.

Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 

Contact us

Do you need advice on employment law issues and the impact of COVID-19? The GatekeeperHR team is here to help. GatekeeperHR is a fixed cost, employment law and HR retainer service which provides businesses with access to a dedicated team of experienced lawyers and HR professionals who you can speak to, or meet face-to-face, at any time. The service includes a full HR compliance audit, access to an online portal full of valuable employment law and HR resources and an annual training session on topics of your choosing. To find out more about GatekeeperHR, please visit: www.gatekeeperhr.co.uk or contact us

Alternatively, for advice and guidance for care homes and unvaccinated staff, please contact VictoriaRegan@rixandkay.co.uk partner in Rix & Kay’s Employment Care Home Defence Team or Tel: 01273 766924.

 

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