HCPA asked our law strategic partner, Ridouts, for some commentary on this case which makes interesting reading for our members. Please note the message of caution at the end as this is the first of these cases. Please do contact the Provider Hub assistance@hcpa.co.uk if you have any concerns of your own and would like support.

Article written by Gemma Nicholas, Solicitor, Ridout Law

An Employment Tribunal has determined that a Care Assistant, Ms C Allette (“Allette”), was fairly dismissed from a nursing home following her refusal to be vaccinated against COVID-19.

Allette had been employed by Scarsdale Grange Nursing Home Limited (“Scarsdale Grange”) for 14 years as a Care Assistant in its 52 bedded nursing home which provides residential care for service users with dementia. Allette made a claim for unfair dismissal and wrongful dismissal after she was dismissed in January 2021.

The Tribunal found that Allette’s dismissal was fair and Scarsdale Grange did not breach Allette’s contract of employment. Her complaints of unfair dismissal and wrongful dismissal were dismissed on the basis that they were “not well-founded”.

The issues considered by the Employment Tribunal included:

What was the reason for dismissal?

Allette was dismissed for a refusal to comply with a reasonable management instruction. Quoting from the judgment “There is an implied term in every contract of employment requiring an employee to comply with reasonable management instructions.”

The Tribunal agreed, determining that Allette’s actions fell within the definition and examples of gross misconduct with Scarsdale Grange’s disciplinary policy and “her refusal to be vaccinated was therefore an action which in the circumstances of this case, amounted to a repudiatory breach of her contract of employment with the respondent. The respondent was therefore entitled to summarily dismiss her.”

Is the interference with Allette’s human rights justified?

The Tribunal agreed that the management instruction to have the vaccine interferes with an employee’s physical integrity in a manner capable of engaging the rights under Article 8(1) of the European Convention on Human Rights (right to respect of private and family life). However, it decided that Allette’s Article 8 rights needed to be balanced against the Article 8 rights of residents, the other staff and visitors to Scarsdale Grange. The interference with the Article 8 rights of residents, the other staff and visitors was deemed unjustified such that the requirement for Allette to be vaccinated or face dismissal was justified.

Did Scarsdale Grange act reasonably?

The Tribunal found that Scarsdale Grange “acted within the range of reasonable responses of a reasonable employer” and that dismissal was proportionate in the circumstances. This is despite the Tribunal finding that Scarsdale Grange could have given Allette more opportunities to change her mind, could have placed her on unpaid or paid leave and could have taken additional measures to seek to persuade her to have the vaccination.

It was also revealed that Allette had contracted COVID-19, and she therefore argued that there was no tangible benefit to having the vaccine. Allette did not put those arguments forward in her disciplinary hearing therefore Scarsdale Grange could not take that into account at the time. Scarsdale Grange was guided by medical advice at the time and concluded that there was a tangible benefit to her having the vaccine and a real risk to residents, staff and visitors if she did not.

It was deemed reasonable that Scarsdale Grange refused to make an exception for Allette because of their legitimate concerns about the withdrawal of insurance cover. Allette was the only unvaccinated staff member out of a total of 65 permanent staff “and therefore the most likely vector for infection” which could expose Scarsdale Grange to litigation claims.

The Tribunal did not consider discrimination

During the case Allette explained that part of her reason for refusing the vaccination was because she was a practising Rastafarian and that the vaccine was against her beliefs. However, Allette did not mention this during the disciplinary hearing. As a result, due to the Allette’s late revelation that she was refusing the vaccine for religious reasons, a complaint of discrimination was not pursued neither was an argument that Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) was engaged.

Status of this judgment

Providers should note that this case is only first instance and so is not legally binding. It could be subject to appeal. However, it provides a useful indication especially for care home providers of how these cases might be treated. There are likely to be more cases to follow over the coming months.

Ultimately every case will turn on its own facts. Taking disciplinary or dismissal action for failing to be vaccinated is not completely without risk and providers must ensure that the correct processes and procedures are followed and documented.

Providers can contact Ridouts for further information on the issue of mandatory vaccines for staff.

Gemma Nicholas
DDI: 0207 317 0345
Email: gemma@ridout-law.com