Case of the week
Care worker summarily dismissed for not having the Covid 19 vaccine.
No Jab - No Job - Fair dismissal!
This is the first case I’ve come across where a worker has been sacked for refusing to be vaccinated. As most of us are aware, it has been mandatory, since November last year, to be vaccinated in order to work in a CQC registered care home.
This case occurred before the legislation kicked in and is an example of an employer dismissing an employee for failing to follow a reasonable management instruction.
Whilst decisions in employment tribunals do not set a legal precedent, it is interesting to see how a tribunal has approached such an emotive issue and how it has arrived at the decision.
In Ms C Allette v Scarsdale Nursing Home Limited, Ms Allette lost her unfair and wrongful dismissal claims. She was summarily dismissed from her role as a care assistant at Scarsdale Nursing Home, which operates as a home providing residential care to dementia sufferers. She was dismissed following her refusal to be vaccinated against Covid 19 in January 2021.
Scarsdale Nursing Home is a family run business, owned by Mr Greg McDonagh and Mrs Tamara McDonagh. The Home provides residential care for dementia sufferers, with a capacity of 52 beds, around 65 permanent staff and, during the Covid-19 pandemic, an average occupancy rate of 34 residents.
Ms Allette was a long standing employee having started back in 2007 and her role meant that she had direct contact with the residents.
Up to a point the Home had been lucky that they had no instances of Covid 19 infections. In December 2020 the government announced the rollout of the vaccine program and vaccinations for the care home was scheduled immediately. Sadly there was then an outbreak of Covid 19 within the Home.
This resulted in 33 staff and 22 residents contracting the illness in the course of 10 days. Around half the staff were required to self-isolate and there were a number of deaths among the residents.
Ms Allette was one of the staff who contracted the illness and was required to self-isolate, so was absent from the Home during the height of the outbreak. The planned vaccinations in December were cancelled by reason of the outbreak.
The vaccinations were then rescheduled for mid January. Ms Allette refused to be vaccinated. Mr McDonagh spoke with her by telephone and tried to persuade her to take the vaccine. The reason she gave for her refusal was simply because she thought it wasn’t safe1.
Mr McDonagh was also a solicitor and, as a matter of course, took an attendance note of the conversation. He wrote:
She did not trust the vaccine was safe as it had been rushed through without being properly tested - she would want to wait until it had been properly rolled out before she decided whether it was safe and that she would have it.
She and her son had gone on the internet and had read stories about it being unsafe and that the government were lying about its safety - it was a conspiracy.
No one could guarantee its safety - she then asked me whether I could guarantee its safety.
Mr McDonagh went on to explain how the vaccine worked, why he considered it safe and wanted staff to have it. He explained to her that, in the absence of reasonable grounds for refusing to follow the instruction to have the vaccine, she could face disciplinary action. He wrote:
CA restated what she had said previously and said that she did not trust the vaccine. CA explained that people had died from taking the vaccine.
Many of us will recognise the comments she made. Social media pages have been full of anti-vaccine and anti mask rhetoric and it appears Ms Allette picked up on some of that.
She was duly suspended from work and invited to a disciplinary meeting. The disciplinary allegation was that she had refused to follow a reasonable management instruction to have the Covid-19 vaccination and that her reasons for refusing the vaccine (that she did not trust it) were not reasonable in the circumstances.
At the disciplinary meeting, Mr McDonagh explained that the Home’s insurers had told him they would not provide public liability insurance for Covid 19 related risks after March 2021 and that, thereafter, the Home faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.
He also explained there were similar issues around employer’s liability insurance and that, as she was the only staff member refusing the vaccine, it would be easier to trace transmission to her and make legal action more likely. Mr McDonagh also explained that the insurers had made it clear to him that they were expecting the Home to insist that all staff were vaccinated, unless they could reasonably justify refusal.
He took the view that failing to vaccinate staff could lead to any affected third party suing the Home or its directors for allowing staff to continue working in that environment without a vaccine.
He did not believe Ms Allette had a reasonable excuse for refusing the vaccine. He believed that, being unvaccinated, she would pose a real risk to the health or lives of residents, staff and visitors to the Home. He took the view that he could not make an exception for one member of staff because not all residents could be vaccinated, the vaccine was not 100% effective and visitors might be unvaccinated.
He offered a further opportunity to have the vaccine the following day but she refused. Mr McDonagh wrote to Ms Allette informing her that she was summarily dismissed for gross misconduct on the ground that she had failed to follow a reasonable management instruction to be vaccinated.
The Tribunal found that Mr McDonagh’s principal reason for dismissing her was for unreasonably refusing to follow his management instruction to have the vaccine. However, it also found he lost trust and confidence in her because he believed her to have been dishonest during the disciplinary hearing2 and that contributed to his decision to summarily dismiss her. He accepted in cross examination that, had she changed her mind and had the vaccine the following day, he would still have disciplined her for lying to him during the disciplinary hearing.
She appealed her dismissal but the decision was upheld.
Now, many commentators will say that forcing her to have the vaccine will infringe her basic human rights. The tribunal was aware of this and considered the dismissal in light of Article 8 of the European Convention on Human Rights3
Although no one was forcing her to have the vaccine, because she had the option to remain unvaccinated, doing so would mean losing her job. Keeping her job therefore required her to have the vaccine and that was an interference with her physical integrity to which she objected, and so falls within Article 8.
But Article 8 also protects fellow employees and residents, and the tribunal held that Mr McDonagh had a legitimate aim in protecting those people and therefore was acting proportionally in dismissing her for refusing to follow a reasonable management instruction. He also has a second legitimate aim in the possible withdrawal of insurance cover if she remained unvaccinated.
As I said previously, employment tribunals are not binding and this case is very fact specific. It is not the case that any failure by staff to be vaccinated is automatically a gross misconduct offence.
As it happens Ms Allette would have been dismissed shortly after in any event because, as I stated earlier, it is now a mandatory requirement to be vaccinated in her sector.
But, although this does not set a precedent, I believe it provides a good argument as to why a failure to be vaccinated can be gross misconduct. Scarsdale Nursing Home looks after extremely vulnerable people and so it was imperative that all possible measures were taken to protect the residents.
Could the same be said for office workers, factory workers and the like? Before implementing any such policy employers should look at alternative ways of protecting staff and visitors - social distancing, hand sanitising, ventilation etc. If the desired protection cannot be achieved by such measures and a robust risk assessment is produced, it may be that vaccination is the only way forward.
I recall last year, more or less at the same time as this case occurred, I suggested to my colleagues on a private Facebook group that it may be possible to dismiss for failing to follow a reasonable management instruction if staff were not vaccinated. I was slated - and they are HR professionals!
This is a highly emotive issue and I don’t doubt there will be more similar cases. It remains to be seen what follows but ideally we need one case to go through the appeal process before we are given a definitive answer.
She also claimed later that her religious beliefs prevented her from the vaccine. There was some dispute on that point, but the tribunal found she failed to mention it during the conversation.
In respect to her assertion when she cited religious reasons for refusing and that she had cynically alleged discrimination.
“Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”