Compulsory Vaccination of Care Home Staff

Dismissal of employee who refused COVID-19 vaccine held to be fair

In what is thought to be one of the first cases relating to mandatory vaccine policies, an Employment Tribunal has found that the dismissal of an employee following a refusal to be vaccinated was not unfair.

Background

The events of Allette v Scarsdale Grange Nursing Home Ltd took place in January 2021, prior to vaccines being required for all care homes employees in England, which was only mandated in November 2021.

Following an outbreak of COVID-19 at the care home, the employer informed all of its employees that it would be compulsory to be vaccinated, and employees could face disciplinary action if they were not. The employee stated to her employer that she did not believe the vaccine was safe and, as she had already contracted COVID-19, argued she was immune.

The employee was suspended by her employer and invited to a disciplinary hearing on the basis that she had refused a reasonable management instruction and there was a real risk to the health and safety of the care home’s residents. At her disciplinary hearing, the employee stated that she could not have the vaccine due to her Rastafarian religious beliefs, which had not been previously raised. The employee was dismissed on 1st February 2021 without notice.

Unfair dismissal?

The employee failed in her claim of unfair dismissal. The Employment Tribunal held that requiring vaccines for employees working with vulnerable individuals was a reasonable management instruction and that to refuse was gross insubordination. Therefore, dismissal was a reasonable action on the part of the employer.

The employee also argued that the requirement to have a vaccine breached her right to a private life. This was rejected on the basis that the vaccine requirement was necessary and proportionate to the employer’s aims to protect the health and safety of its residents. Furthermore, the employer was genuinely concerned about the withdrawal of insurance cover if its staff were not vaccinated.

What does this mean for unvaccinated employees?

The Employment Tribunal were quick to state that this case did not mean that being unvaccinated would be an offence warranting dismissal, and each claim will turn on their facts. In this case, the Employment Tribunal did not believe the employee’s argument over her religious beliefs. However, this may have been taken into greater consideration had it been raised at an earlier stage.

The fact that the employer was a small care home and had to ensure the safety of its residents was key. In contrast, a larger employer with greater resources may have been able to redeploy the employee to ensure she did not come into contact with vulnerable individuals. In a non-healthcare setting, the requirement for all employees to be vaccinated may not be as necessary or proportionate.

In January 2022, the government abandoned its plans to make vaccines mandatory for healthcare workers, which was due to be required from April 2022. The vaccine requirement for employees in the care sector is currently subject to review.

Here to help

If you require further information and assistance on vaccination issues or policies, you can contact our Employment Team below.