Dismissal for Covid-19 vaccination refusal found to be fair

Unsurprisingly, we have seen a deluge of decisions coming through from the employment tribunals relating to Covid-19 over recent months. One such decision, in the case of Allette v Scarsdale Grange Nursing Home Ltd, provides an indication of how tribunals will consider dismissals relating to an employee’s refusal to accept a Covid-19 vaccination.

Background

The claimant in this case worked as a care assistant in a nursing home. In December 2020, the government announced the roll-out of the Covid-19 vaccine programme to health workers and nursing home residents.

Although Covid-19 vaccinations were not made mandatory at this time, the nursing home (the respondent) decided to make it a condition of continued employment. This was because not all visitors would be vaccinated, and not all residents could be vaccinated due to medical reasons. Unfortunately, the respondent was hit with an outbreak of Covid-19 which resulted in a number of deaths, and vaccinations due to be carried out on 22 December 2020 were rescheduled for January 2021.

The claimant became aware that her continued employment was conditional on her accepting the vaccine on 12 January 2021, 24 hours before her vaccination was due to be administered. She refused the vaccine and explained her reasons during a telephone call. Specifically, she noted concerns as to the vaccine’s safety, and that she had read stories on the internet about a government conspiracy.

The claimant was subsequently invited to a disciplinary hearing at which she noted, for the first time, that she had a religious objection to the vaccination, due to her Rastafarianism beliefs. She further explained that as she had previously contracted Covid-19, she was now likely to have some immunity.

During a meeting on 28 January 2021, the claimant was told that the respondent’s insurers would not provide public liability insurance for Covid-19 related risks after March 2021. This meant the claimant posed a liability risk if she remained unvaccinated. The respondent decided that the risk of her continued employment was too high, and that there was no reasonable excuse for her refusal to have the vaccine.

The claimant appealed the decision but the decision to dismiss was upheld. She subsequently brought claims for unfair and wrongful dismissal.

The decision

The tribunal found that the respondent’s main priority was to protect the health of staff and residents, and to not breach its public liability insurance. It was a reasonable management instruction to make vaccinations a condition of employment in the circumstances.

The tribunal considered the reasonableness test as set out in section 98(4) of the Employment Rights Act and concluded that the dismissal was fair.

The tribunal accepted that the claimant had a genuine concern about the vaccine but relying on unreliable internet sources and believing in conspiracy theories did not constitute a reasonable refusal.

The claimant did not persuade the tribunal that her religious beliefs were genuinely the reason for her refusal of the vaccine.

The tribunal gave consideration to section 3 of the Human Rights Act so as to be compatible with Article 8 rights, and found that the interference with the claimant’s private life in requiring her to have the vaccine was necessary, and needed to be balanced against the Article 8 rights of residents, visitors and other staff members.

Finally, the tribunal made it clear that the respondent’s decision to impose vaccinations in January 2021 had to be seen in the light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time, and that this case by no means should be taken as a general indication that dismissal for refusing to be vaccinated against Covid-19 is fair.

In the circumstances, the claimant’s refusal amounted to gross misconduct, and the dismissal was within the range of reasonable responses.

Impact on schools

It continues to be the case that most employers, including schools, are supporting, and encouraging staff to get vaccinated, rather than making it a condition of employment. As the government has not legislated for the Covid-19 vaccine to be mandatory within the education sector, on balance, we consider that it remains a risk for schools to insist on vaccination, even in an environment where there is often close contact and social distancing can be difficult, particularly in the younger years.

The key legal issues with mandating the vaccine are the risks associated with dismissing employees who refuse and have over two years’ service, and the potential for discrimination claims from employees with a protected characteristic.

In this case, the tribunal found the dismissal to be fair, but were clear in noting that this should by no means be taken to be a general principle and that all such cases will turn on their particular facts.

Given the significant legal issues and risks associated with mandating vaccination, we anticipate that schools, and most employers, will continue to adopt an approach whereby they seek to support and strongly encourage staff to have the vaccine.

Any schools considering taking a different approach should seek legal advice, given the potential risks.