Mandatory vaccination: Care home worker fairly dismissed over vaccine refusal
We examine the case of Allette v Scarsdale Grange Nursing Home Ltd, the first published case arising from a VCOD requirement.
Vaccination as a condition of deployment (VCOD) has arguably been the biggest human resources challenge faced by employers in the health and social care sector in many years.
We have worked closely with care providers in recent months to support them to engage and consult employees, follow a fair process and to dismiss employees where necessary to comply with statutory requirements. We continue to work with them in respect of the likely repeal of the Health and Social Care Act 2008 (Regulated Activities)(Amendment)(Coronavirus) Regulations 2021(the Regulations) which mandated VCOD and resulting updated government guidance on staff vaccinations. The repeal is expected to be ratified by parliament within a matter of weeks, at which point, the VCOD requirements will no longer be a legal requirement for health and social care employers.
However, Allette v Scarsdale Grange Nursing Home Ltd, the first published case arising from a VCOD requirement, remains relevant to employers in the sector. In this case, decided in January 2022, an employment tribunal held that a care home worker, who refused to be vaccinated, was fairly dismissed by her employer in January 2021.
The Claimant, Ms Allette, worked in a family-run care home that provides residential care for people with dementia. In December 2020, informal conversations took place encouraging staff to take up their COVID-19 vaccinations. Subsequently, the home was hit by an outbreak in which 33 staff, including Ms Allette, were infected, along with 22 residents (several of whom died). By January 2021, the employer had changed its stance and decided to make vaccination a condition of employment.
Ms Allette refused to be vaccinated, explaining that she did not trust the vaccine’s safety. At her disciplinary hearing she also for the first time raised a religious objection to the vaccine based on her Rastafarianism, which involved opposition to any form of non-natural medication. She had not previously made her employer aware of her religious beliefs.
The employer concluded that Ms Allette did not have a reasonable excuse for refusing the vaccine and that it would not be appropriate to make an exception for her. She was therefore dismissed for gross misconduct on the grounds that she had failed to follow a reasonable management instruction and brought claims of unfair dismissal and wrongful dismissal (on the basis that she should not have been dismissed without notice).
The employment tribunal rejected both of Ms Allette’s claims.
It noted that there was nothing in Ms Allette’s contract of employment that required her to be vaccinated, nor was there anything in the care home’s disciplinary policy about the consequences of following a reasonable management instruction to be vaccinated. However, her employer had clearly communicated the vaccination requirement and made Ms Allette aware that there was a risk of disciplinary action if she refused.
The employment tribunal acknowledged that, ideally, the employer could have given her more opportunities to change her mind; placed her on paid or unpaid leave; and/or sought further independent scientific information to seek to persuade her that the vaccine was safe and necessary. However, the employer had acted within the range of reasonable responses available to a reasonable employer.
The employer’s instruction that staff must be vaccinated, or face dismissal, was reasonable given the state of the pandemic nationally at that time, available advice on the safety of the vaccine from public health authorities in England, and the ‘dreadful’ consequences of the outbreak the care home had experienced. The employer had acted reasonably in labelling her refusal ‘gross misconduct’ under the terms of its disciplinary procedure.
The employment tribunal also rejected Ms Allette’s argument that mandatory vaccination was a breach of her human rights under Article 8 of the European Convention on Human Rights (the right to respect to private life). It accepted that the employer’s vaccination policy was ‘an interference with her physical integrity to which she objected’ but held that such interference was justified in this case and was outweighed by the employer’s obligation to protect its vulnerable residents. It was also relevant that the employer’s insurers had warned it about the insurance risks of unvaccinated staff passing on the virus to a resident, colleague, or visitor. In balancing the employee’s individual rights against their employer’s obligations to staff and service users, the employment tribunal, in the extreme circumstances in play at the relevant time in this case, held that the serious responsibility to keep residents safe outweighed the individual’s genuine fear of vaccination, her purported religious beliefs and the interference with her human rights. It is important to note, however, that the same balancing exercise will not necessarily have the same outcome in less extreme circumstances or at a different time, for example, outside the surge/height of the pandemic.
What does this mean for me?
It is important to note that this is a ‘first-instance’ employment tribunal decision that is not binding on other employment tribunals. However, it gives a useful indication of how an employment tribunal is likely to approach the key issues in future, similar cases.
As the tribunal hearing in this case took place before the statutory VCOD requirement for care homes in England came into force on 11 November 2021, it is an interesting example of a fair dismissal in response to an employer’s own mandatory vaccination policy, as opposed to dismissal in response to the statutory vaccination mandate.
If the Regulations are repealed in due course as expected, individual providers of CQC-regulated health and social care services will need to consider what their policy stance on vaccination will be going forward, as the employer did in this case before the Regulations came into force.
The situation is somewhat simpler regarding any dismissals that were carried out with reference to the VCOD mandate, as the potentially fair reason of illegality/statutory bar is likely to be available in such cases; in other words, the employer can demonstrate that it would have been unlawful to continue to employee unvaccinated members of staff whilst the Regulations remained in force. An employer will still need to demonstrate a fair process was followed, for example, including consideration of redeployment and a right of appeal.
No doubt in an effort to stem potential claims in respect of dismissals made during the period of the Regulations being in force, when announcing the government’s U-turn on VCOD on 31 January 2022, Health Secretary Sajid Javid stressed that the revocation of the vaccine mandate will not affect the dismissals of staff that took place whilst the Regulations remained in force, because “that policy was right at the time”. However, this may not be widely understood amongst former staff, and the U-turn may potentially still prompt a spike in unfair dismissal claims.
It also remains to be seen whether Sajid Javid’s rationale for the U-turn, that VCOD is no longer proportionate due to the less extreme conditions which the Omicron variant has brought to the pandemic, will undermine the persuasiveness of an employer’s potential justification defence in respect of interference with an individual’s human rights or any indirect discrimination.