An Employment Tribunal has recently held that a care home was lawful in its dismissal of a care assistant who refused to be vaccinated against COVID-19. Although the requirement to be vaccinated was an interference with the assistant’s right to privacy, the action was justified and proportionate. This decision will be of specific interest to those employers in the health and care sector.
An employee with at least two years’ continuous employment will succeed in bringing an in-time claim for unfair dismissal unless the employer can show it was for one of the potentially fair reasons under s98 Employment Rights Act 1996 (ERA). These reasons include capability, conduct, redundancy, breach of statute or some other substantial reason. The tribunal must consider whether the dismissal was fair having regard to the facts of the case, including the size and administrative resources of the employer. The tribunal must also be satisfied that the decision was in the range of reasonable responses available to the employer in the circumstances.
It is also an implied term in all employment contracts that employees are to obey the lawful and reasonable directions of their employer. Failure to do so may constitute misconduct or, if sufficiently serious, gross misconduct. Dismissal for gross misconduct is one of the potentially fair reasons under the ERA.
The Human Rights Act 1998 (HRA) dictates that tribunals must have regard to the European Convention on Human Rights (ECHR). A tribunal should consider the reasons for dismissal in light of the rights granted by the ECHR, including Article 8 which dictates that everyone has the right to respect for private life. Any interference with this right (including a decision to dismiss) should be necessary, legitimate and proportionate.
Ms Allette was a care assistant at the Scarsdale Grange Nursing Home Ltd (Scarsdale). In December 2020, in the midst of record cases of COVID-19, Scarsdale arranged for staff to be vaccinated against COVID-19 however this was cancelled and rescheduled for January 2021 due to a COVID-19 outbreak at the care home which saw the death of many residents and positive cases in a number of staff members.
At this time Scarsdale explained to Ms Allette the medical rationale behind having the vaccine, the fact that the vaccination was mandatory and that disciplinary steps could be taken against her if she refused. Ms Allette’s view was that she had recently contracted COVID-19 and was immune, and that the vaccine was not safe.
It was not a specific provision with Ms Allette’s contract of employment, nor within the disciplinary policy that vaccination was mandatory or that disciplinary action could be taken where an employee refused. However, Scarsdale did have a policy in place which highlighted that refusal to carry out legitimate instructions or a breach of the Unsatisfactory Conduct and Misconduct Rules which required that any action taken by employees which could threaten the health or safety of an employee, other employees, residents or members of the public, could constitute misconduct.
As a result of refusal to become vaccinated Ms Allette was suspended and attended a disciplinary hearing, and due to concerns around the safety of others and implications on liability insurance, Scarsdale summarily dismissed Ms Allette for gross misconduct. Ms Allette appealed however the original outcome was upheld. Ms Allette then brought claims to the employment tribunal.
Bright EJ dismissed Ms Allette’s claims. Given the seriousness of the pandemic in December 2020, the outbreak in the care home and the advice of Public Health England at the time, the decision to enforce mandatory vaccination was a reasonable management instruction.
The tribunal found that Ms Allette’s refusal on the grounds of safety was not reasonable considering the public medical stance regarding vaccination, and the state of the care home at the time of refusal. Her actions amounted to gross misconduct and the decision to dismiss was fair and within the range of reasonable responses available to Scarsdale.
The tribunal also found that requiring an employee to be vaccinated was an interference with physical integrity, and refusal to become vaccinated would mean loss of employment; as such the right to privacy under the ECHR was engaged. However, there were legitimate aims to requiring vaccination – namely protecting the health and safety and balancing the Article 8 rights of staff, residents and the public and maintaining the soundness of public liability insurance. The dismissal was proportionate considering the finality and unreasonableness of Ms Allette’s refusal, the concerns regarding liability insurance and the care home setting.
Finally, the dismissal was fair in all the circumstances: Scarsdale genuinely believe Ms Allette had committed gross misconduct, the refusal to investigate further was not outside the range of reasonable responses, the factual background of the dismissal and the fact that Scarsdale had followed the ACAS code all contributed to this decision.
While all tribunal decisions are heavily fact specific, the decision in Allette indicates that following government guidance, taking disciplinary action against and dismissing those who refuse mandatory vaccination may not constitute unfair dismissal. It is also of note that the tribunal found that the interference with the right to privacy in the context of mandatory COVID-19 vaccination was justified and proportionate. This is however, an untrodden and constantly changing landscape.
Employers should still follow their own policies and procedures as an otherwise fair dismissal may be deemed unfair if there is a failure to do so. Equally, a different decision may have been reached if Ms Allette had brought claims for discrimination due to religious belief, or indeed any other protected characteristic, under the Equality Act 2010 which would require a different test. Employers should ensure that the individual circumstances are reviewed each time a decision is made to dismiss based on company policy to ensure certain employees are not receiving less favourable treatment.
Employers should keep themselves informed in the event that Ms Allette appeals the decision of the employment tribunal, particularly those affected by the latest extension of mandatory vaccination to most employees in the health and care sector by April 2022. On 31 January Health Secretary Sajid Javid made the announcement that ending the policy for mandatory vaccination in all health and care settings is now under consultation. This will have a far-reaching impact and employers should be careful not to take any hasty decisions in the meantime.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.