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  • Overview

    The Employment Tribunal (ET) has found that in the case of Allette (A) v Scarsdale Grange Nursing Home Ltd (SGNH Ltd), the dismissal of a care home employee, for refusing to be vaccinated against Covid in January 2021, was not unfair.

    Facts of the case:

    A was a care home worker in a small family run nursing home providing residential care for dementia sufferers. In December 2020, the rollout of the Covid vaccine to nursing home residents and staff was due to begin however, SGNH Ltd was hit with an outbreak in which 33 members of staff (including A) and 22 residents caught Covid ; there were a number of deaths.

    As a result, SGNH Ltd decided to make vaccinations a condition of continued employment. A refused to have the vaccine (for reasons that it was not safe and had not been tested thoroughly enough).  In a subsequent disciplinary hearing, she also revealed that her Rastafarianism meant she had a religious ground for refusing the vaccine. SGNH Ltd decided that A did not have a reasonable excuse for refusing the vaccine and that her religion was not the real reason for refusing the vaccine.

    A claimed unfair dismissal as a result of the dismissal.

    The ET rejected both claims. The Tribunal accepted that SGNH Ltd had a primary legitimate aim to protect the health of their staff, residents and visitors, and a secondary aim to not breach their insurance policy. Therefore, dismissing A on the grounds of conduct for not following reasonable instruction was accepted.

    The ET also ruled that A was not genuinely refusing to have the vaccine on religious grounds, and that it was reasonable for SGNH Ltd to conclude that an employee who was merely sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine.

    The ET also decided that although there was interference with A’s Article 8 Human Rights Convention right (right to respect for her private life) in requiring A to have the vaccine, this was justified as the Article 8 rights of the residents and other staff and visitors were unjustly interfered with by the presence and risk of A being unvaccinated.  A would have been the only unvaccinated worker in the home, had she remained in employment.

    The ET also looked at what the government guidance was at the time of the dismissal and found the dismissal to be within the range of reasonable responses for the reasons highlighted above.

    What effect does this ruling have?

    During late 2020 and early 2021, the vaccine was only just starting to be rolled out. Since then, vaccines have become mandatory for care home settings and are soon to become mandatory for frontline healthcare workers and Care Quality Commission (CQC) regulated social care workers from 1 April 2022. This means that unless these workers have a valid medical exemption, a full course of an approved Covid vaccine is required for continued employment. Dismissal of an employee who refuses to have the vaccine (except where they have a permitted exemption) is therefore reasonable on statutory grounds.

    However, the tribunal ruling in this case may have a huge effect on industries where the Covid vaccine is not currently compulsory, but where staff come into close contact with others, or where there may be a business need to introduce compulsory vaccination.

    This might include non-CQC regulated care workers, hospitality workers, teachers or companies with an insurance policy which may not indemnify businesses against claims from visitors or employees who catch Covid and become seriously ill or worse, because they have not been protected from infection with sufficient measures such as mandatory vaccines. The decision is a useful first look at how ETs may deal with claims related to compulsory vaccinations where there is no legal. 

    What do employers need to consider?

    Whilst this ruling will undoubtedly pave the way for similar cases appearing in the ET, employers will need to be aware of the following:

    • Unfair dismissal claims – employers will need to show that it was a reasonable request to mandate vaccinations
    • If undue pressure is placed on unvaccinated employees, there may be a claim for constructive dismissal or work place bullying;
    • Whether alternatives can be utilised effectively to replace any requirement for mandatory vaccinations (PPE, social distancing, regular testing)?;
    • The impact loss of staff may have for the company; is the company going to be able to recruit trained and vaccinated staff to replace those who have been dismissed?; and
    • The role of GDPR - asking for employees’ vaccination status will fall within the scope of GDPR as vaccination status is special category data. Employers will therefore need to be fair and open with how they ask for and process data, for no longer than is really necessary to deal with public and employee health protection.

     

    This article first appeared in HR Magazine.

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