In Allette v Scarsdale Grange Nursing Home Ltd, the employment tribunal held that the summary dismissal of a care assistant working in a nursing home who refused to be vaccinated against COVID-19 was fair, and the interference with her Article 8 right to privacy was justified. It is important to note that the requirement to be vaccinated and the resulting dismissal were before vaccinations became mandatory for care home staff.
Background
Ms Allette was employed as a care assistant by Scarsdale Grange Nursing Home Ltd, a small home providing residential care for dementia sufferers. The employer made vaccinations against COVID-19 mandatory for staff following the roll-out of the government’s vaccination programme to nursing home workers. Ms Allette refused to be vaccinated as she thought the vaccine was unsafe.
Ms Allette was subsequently suspended and invited to a disciplinary hearing. At the disciplinary hearing, Ms Allette referred to her religious beliefs and Rastafarianism as the reason for her refusal to be vaccinated and accused her employer of discrimination. Her employer was not aware of her Rastafarianism before this time and she had not previously provided this as a reason for refusing the vaccine. The employer was concerned for the safety of staff and vulnerable residents in the care home as well as their insurers no longer providing public liability insurance for COVID-19 related risks after March 2021. As a result, the employer faced the risk of liability if unvaccinated staff were found to have passed the virus onto a resident or visitor and Ms Allette would be the only unvaccinated staff member.
Ms Allette was summarily dismissed on the grounds that she had unreasonably refused to follow management instructions to be vaccinated. Ms Allette appealed against her dismissal but the decision to dismiss was upheld. Ms Allette brought claims for unfair dismissal and wrongful dismissal.
Decision
The Tribunal dismissed both claims. The employer had a legitimate aim to protect the health and safety of residents, staff and visitors. The Tribunal found that although there was interference with Ms Allette’s Article 8 Convention right to respect for her private life, this was justified in the particular circumstances of this care home because Ms Allette’s presence unjustly interfered with the Article 8 rights of the residents. The residents of the home suffered with dementia and some may not have had the capacity to exercise choice over whether they came into contact with an unvaccinated person and or continued residing in the home. It held the employer acted reasonably and proportionately in the dismissal and that Ms Allette’s fear and scepticism was an unsubstantiated belief, not a religious belief, and as she knew her actions represented a risk to others this amounted to gross misconduct.
What this means for employers
This decision is very fact specific and is not binding, although it provides useful insight into how tribunals may deal with claims in relation to mandatory vaccination and the relevance of the Convention rights, particularly within settings where there is no legal requirement for vaccination (as was the case within the care home at the time).
When considering mandatory vaccination outside the care sector, legal advice should be obtained before implementing any policy. Employers should also be alive to discrimination risks where staff have refused the vaccine on the grounds of a protected characteristic.
For more information on mandatory vaccinations or advice on anything COVID-19 related, please contact a member of the Employment Team.
