Dismissal for Refusing a Covid-19 Vaccine: Fair, in the Right Circumstances
Written by Tim Wilkinson
In Allette v Scarsdale Grange Nursing Home Limited, case 1803699/2021, Employment Judge Bright, sitting in Leeds, has dismissed claims for unfair and wrongful dismissal following Ms Allette’s dismissal for refusing to be vaccinated against Covid-19. Although first instance, and fact-dependent, this judgment will be comforting reading for those who took the difficult decision to dismiss employees in similar situations, or advised that such a path would be reasonable. The dismissal pre-dated the mandatory vaccinations introduced by the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.
Ms Allette was a care assistant at the Respondent’s nursing home (“the Home”), a family-run business with an average occupancy of thirty-four residents and approximately sixty-five permanent staff. In December 2020, the Home suffered a Covid-19 outbreak and a number of the residents died.
The Respondent introduced a requirement for its staff to be vaccinated against Covid-19. This had been planned for December 2020, but postponed until January 2021 following the aforementioned outbreak. Unsurprisingly, the Claimant’s contract of employment did not contain any express clauses requiring vaccinations. The Respondent argued that it was a reasonable management instruction.
In her witness statement for the proceedings, the Claimant put forward a number of reasons why she did not want the vaccine: concerns about the safety of it; her Rastafarian beliefs; and a belief that she was already immune, having previously contracted Covid-19. For various reasons, EJ Bright found that her initial refusal was because of her concerns as to safety, rather than the latter two reasons set out in her statement. Although she raised her Rastafarian beliefs at the disciplinary hearing, the Respondent’s Director (Mr McDonagh) did not believe that to be a genuine reason and, at Tribunal, EJ Bright did not accept that it was a reason for the Claimant’s refusal. With regards to safety, the Claimant did not rely upon or provide to the Respondent any medical authority or clinical basis for her concerns. During discussions, including at the disciplinary hearing, Mr McDonagh explained his understanding of the science and attempted to allay concerns about the compressed testing process behind the vaccine. He had had numerous discussions with Public Health England, amongst others, on the subject.
Ultimately, EJ Bright found that Mr McDonagh genuinely did not believe that the Claimant had a reasonable excuse for refusing the vaccine, and genuinely believed that she would pose a risk to the lives of residents, staff and visitors. The decision to make the vaccine mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. Although the Claimant did not believe that the vaccine was safe, she relied on no medical authority or clinical basis for her stance. Against the background of the pandemic and all of the available information, her refusal was unreasonable. In dismissing the Claimant’s unfair dismissal claim, EJ Bright accepted that Article 8 of the ECHR was engaged but considered dismissal to be a proportionate means of achieving a legitimate aim.
As always with first instance decisions, care must be taken not to put too much reliance upon its use in future tribunal hearings. EJ Bright was careful to say the following: “In the specific circumstances of this case, therefore, I find that her actions amounted to gross misconduct. That does not mean that a refusal to be vaccinated would amount to gross misconduct, or even misconduct at all, in another case on different facts”. Nevertheless, the judgment is persuasive. It recognises the difficult decisions faced by employers at the time, particularly those caring for vulnerable individuals. There was much discussion in the latter half of 2020 as to whether a vaccination requirement could be a reasonable management instruction. This judgment demonstrates that, in the right circumstances, it was. It is interesting to note that the wrongful dismissal claim also failed, because the Claimant’s safety concerns (and belief in a conspiracy) were unsubstantiated, and she knew that she represented a risk to others. That is despite EJ Bright accepting that her concerns about safety were genuine. One could argue, in such a scenario, that the situation demanded a dismissal on notice.
Tim Wilkinson is an employment specialist. He represents clients in courts and tribunals across the country.