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Following on from our recent article Care Staff Are Expected To Be Given 16 Weeks To Have The Jab - Or Face Being Redeployed Away From Frontline Care Or Losing Their Jobs, which reported the government’s decision to make Covid-19 vaccines mandatory for all staff in registered care homes dealing with nursing and personal care from 11 November 2021, Employment Tribunal judgements are starting to appear on related issues.
In the case of Allette v Scarsdale Grange Nursing Home Ltd , the Employment Tribunal held that the dismissal of a care assistant who refused to have a Covid-19 vaccine was not unfair or wrongful, despite Covid-19 vaccines not being mandatory at the time of her dismissal.
Ms Allette was employed as a care assistant by Scarsdale Grange Nursing Home Ltd providing residential care for dementia sufferers, from 3 December 2007 until her dismissal on 1 February 2021.
In December 2020, as a result of the government's vaccination programme for nursing home workers, the nursing home made arrangements for staff to receive Covid-19 vaccines. However, the planned vaccinations were cancelled due to a Covid-19 outbreak in the nursing home in the days prior to when the vaccines were due to be administered.
Subsequently, the vaccines were rescheduled to take place in January 2021. Prior to this time, employees had been encouraged but not required to be vaccinated and there was no provision in Ms Allette's employment contract, or in the nursing home’s disciplinary policy, requiring care workers to be vaccinated. However, the nursing home’s disciplinary policy provided that "no action is to be taken by you, which could threaten the health or safety of yourself, other employees, residents or members of the public".
On 12 January 2021, the day before vaccines were due to be given to the nursing home’s staff, Ms Allette was told that vaccination was mandatory, and that there was a risk of disciplinary action if she refused. Ms Allette said that she wanted to refuse the vaccine, as it was not safe, and she added that she had recently contracted Covid-19, so was immune.
The nursing home believed however that it was possible to contract the virus twice, and that the vaccine reduced the risk of contracting and transferring it, so it explained the guidance to Ms Allette, and warned her that she risked disciplinary action if she had no reasonable grounds for refusing to be vaccinated.
Ms Allette was subsequently suspended and invited to a disciplinary hearing on the basis that she had refused to follow a reasonable management instruction, and that her reasons for refusing the vaccine were not reasonable in the circumstances.
On 1st February 2021, Ms Allette was summarily dismissed for gross misconduct on the grounds that she had failed to follow a reasonable management instruction to be vaccinated. Ms Allette appealed against her dismissal, and an appeal hearing took place on 24 February 2021, by way of a full re-hearing.
The appeal officer found that Ms Allette's reason for refusing the vaccine was a deep distrust of vaccines, but that Ms Allette had unreasonably refused to follow the instruction of a reasonable management in refusing to be vaccinated. The appeal officer went on to say that this constituted gross misconduct, as Ms Allette’s refusal created an unreasonable risk to the health and safety of the nursing home's residents, staff and visitors, and so rejected her appeal.
Ms Allette brought claims for unfair dismissal and wrongful dismissal, which were dismissed by the Employment Tribunal, on the basis of the serious circumstances of the pandemic, and the guidance given by Public Health England at the time. The Tribunal therefore found that the nursing home’s requirement that Ms Allette be vaccinated was a reasonable instruction.
Whilst one of Ms Allette’s arguments within her claim was her right to privacy under the ECHR as a result of an interference with physical integrity, and refusal to become vaccinated would mean loss of employment, the Employment Tribunal found there to be legitimate aims in the nursing home’s vaccination requirements, specifically the protection of health and safety.
Employers should bear in mind that the case of Allette v Scarsdale Grange Nursing Home Ltd is very fact specific, so should proceed with caution with making similar decisions, and should maintain up to date knowledge of the current legislation and government guidance .
Whilst the government’s decision for Covid-19 vaccines to be mandatory for all staff in registered care homes is currently in place, Sajid Javid announced on 31 January 2022 that the government was consulting over the possibility of mandatory vaccinations in the health sector coming to an end.
For further information, please contact the Ashfords Employment Team.