Tribunal Case: Refusal to get Vaccinated
In the Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that a care home worker was fairly dismissed when she refused to get the vaccination against Covid-19.
Background
Ms Allette worked in a nursing home that provides residential care for people with dementia. In December 2020, staff were encouraged to have their Covid-19 vaccinations to protect their staff and residents. By the middle of January 2021, the nursing home changed their approach and required that staff had to be vaccinated to continue their employment. There had been a Covid-19 outbreak in the nursing home which resulted in the deaths of multiple residents. There was nothing in Ms Allette’s contract of employment that required her to be vaccinated nor was there anything in the nursing homes disciplinary procedure about the termination of employment due to the refusal to get the vaccine.
By the middle of January 2021, it was now made mandatory for staff in the nursing home to be vaccinated, and there was a risk of disciplinary action if she refused to get vaccinated. Ms Allette did not want to be vaccinated as she was concerned over the safety of the vaccine. She was dismissed from the workplace for gross misconduct at the start of February 2021. Her Rastafarian beliefs include being opposed to any form of non-natural medication was reason for her refusal. Her appeal against the dismissal was unsuccessful.
Tribunal Claim
Ms Allette brought claims to the employment tribunal (ET) that her dismissal was unfair due to the right to respect her private life under the European Convention on Human Rights. She also argued that the dismissal was wrongful as it was in breach of the contract.
Employment Tribunal Decision
In relation to Ms Allette’s unfair dismissal claim the ET acknowledged that the employer could have:
• Given her more opportunities to change her mind
• Placed her on unpaid or paid leave
• Sought further scientific information or material to persuade her that the vaccine was safe and necessary.
The tribunal refused to conclude that no employer would have responded the same as the care home did in the circumstances of this case.
They accepted that the nursing home cannot be in direct breach of Act.8 (on the right to respect for private life) of the European Convention on Human Rights because it is not a public authority. The tribunal went on to conclude that the employer's interference in Ms Allette's private life was justified in this case. The tribunal had to consider the balance between her right to a private life and this small employer's legal and moral obligation to protect its vulnerable residents.
When rejecting Ms Allette’s wrongful dismissal claim the ET accepted that the rights of the residents, staff members and visitors outweighed the impact that the requirement to be vaccinated had on Ms Allette.
In relation to her wrongful dismissal claim the ET accepted that there was nothing in her contract that required her to have the vaccine. However, the ET accepted that the nursing homes instructions to their employees that you had to be vaccinated to remain employed was within reason due to the:
• state of the COVID-19 pandemic nationally at that time
• consequences of the care home's outbreak
• advice on the virus and vaccination from public health authorities in England.
The ET found that there was mistrust between Ms Allette and the nursing home’s management team on what she was being told about the safety of the vaccine. According to the tribunal her decision was not made by any religious beliefs and the reason for her not to get vaccinated was unreasonable.
Related Articles:
Covid-19: The Most Recent Tribunal Cases
Case Law: Discriminatory Dismissal
Let's Get Topical - The Vaccine Policy
