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Insights

A word of caution as an employee is fairly dismissed for refusal to be vaccinated

Posted on 01st March 2022 in Employment

Posted by

Stephen Jennings

Partner and Solicitor
A word of caution as an employee is fairly dismissed for refusal to be vaccinated

In Allette v Scarsdale Grange Nursing Home Limited, an Employment Tribunal dismissed an employee’s claim for unfair and wrongful dismissal following her refusal to receive the COVID-19 vaccination. On first sight, some employees may view this as a ‘green light’ for dismissing employees who refuse the vaccine. However, it should not be interpreted as such.

 

Points to note

  • The employee worked in a care home and the refusal and dismissal occurred in early 2021. This was around the time of the first roll-out of the vaccines for care workers. The Tribunal noted “the state of the Covid-19 pandemic nationally at that time, the dreadful consequences of the recent outbreak at the [care home], and the advice from [government departments] with regard to the virus and vaccination”. It also noted it “would be easy… to fall into the error of evaluating the [employer’s] decision-making in the light of everything we know today about the pandemic and vaccinations”.
  • The Judge found that the employer “genuinely did not believe the claimant had a reasonable excuse for refusing the vaccine. He believed that, being unvaccinated, she would pose a real risk to the health or lives of residents, staff and visitors to the [care home].”
  • The employer was a small employer with a legal and moral obligation to protect its vulnerable residents.
  • The Judge emphasised that the case “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”.

 

Claim

Disciplinary action was taken and the employee was ultimately summarily dismissed for gross misconduct on the basis the employee had refused to follow a reasonable management instruction to have the Covid-19 vaccination and that her reasons for refusing the vaccine (that she did not trust it) were not reasonable in the circumstances. There was nothing in the employee’s employment contract or the employer’s disciplinary policy concerning vaccinations. The employee claimed unfair and wrongful dismissal.

 

Decision

The Tribunal upheld the dismissal. The Tribunal found that the employee’s refusal to comply with the employer’s instruction to have the vaccine was because she did not trust what he or the authorities were saying at the time about the safety of the vaccine. The Judge held that the employee’s “fear and scepticism was unreasonable in the circumstances, as she had no medical authority or clinical basis for not receiving the vaccine”. The Tribunal also held that the employee’s refusal was a serious breach of the rule requiring her not to take action which would threaten the health of others. The Judge also noted that the employee “was not forced to have the vaccine. She had the choice (however undesirable) of losing her job to avoid having the vaccine”.

 

Human rights

The case also concerned human rights. The Tribunal held that an “employer’s instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the employee’s physical integrity in a manner capable of engaging the rights under Article 8(1) of the [European Convention on Human Rights]”, and that the employee’s “dismissal for refusing to have the vaccine… was an interference with the right to respect for her private life”.

However, the employer “had a legitimate aim for both the management instruction requiring employees to be vaccinated against Covid-19 and the dismissal of the claimant for unreasonably refusing to comply with that instruction”. The dismissal was also “proportionate in the circumstances, in particular in light of the claimant’s unreasonable reasons for refusing the vaccine, refusal to answer questions about/acknowledgement of the risk she posed, the strength and finality of her refusal and the difficult position presented by the imminent withdrawal of insurance cover”.

Further, the Article 8 rights of those residents, the other staff and any visitors to the Home need to be balanced with the employee’s Article 8 rights. The care home was the place of residence for vulnerable people suffering dementia, some of whom may not have had capacity to exercise choice over whether they came into contact with unvaccinated people nor whether they resided at the care home or left. An unvaccinated person working in the care home would pose a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the care home, such that the requirement to have the vaccine and the employee’s dismissal was justified by reference to Article 8.

 

How can we help?

Please get in touch with our employment lawyers if you require advice generally or help with anything relating to this topic.

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