Care home worker fairly dismissed for refusing Covid-19 vaccination
Employee’s genuine fear and scepticism did not override the vaccination requirement.
In the first year of the pandemic, care home operators in particular were placed in an extremely difficult position, trying to protect their (often vulnerable) residents from the outbreak whilst also juggling staff exhaustion and illness.
Whilst the arrival of a vaccine gave hope, employers were left to navigate between doing what they felt was best to protect residents and staff in the face of vaccine hesitancy. In 2021 we saw the government make it compulsory for care home workers to become vaccinated unless otherwise exempt, with all frontline NHS staff now facing a mandatory vaccination deadline in April 2022.
Whilst mandatory vaccination creates its own challenges (see our article ‘Can employers insist that employees are vaccinated’, available on our website), it does at least make it more straight-forward for employers to say to staff that if they do not get vaccinated they are at risk of losing their jobs because otherwise the employer would be in breach of the law. Until mandatory vaccinations came in, employers had to consider whether staff refusing the vaccine could be fairly dismissed. A recent employment tribunal decision considering events from early 2021 has provided a useful insight into the factors engaged in such a scenario.
Ms Allette was employed by the Home as a Care Assistant which involved her attending to the personal care needs of residents, many of whom suffered from dementia. In December 2020 the UK government began approving the use of new covid-19 vaccinations and at the same time plans were made to target the vaccination programme at the most vulnerable and to frontline NHS and care home staff.
The Home’s owners, Mr and Mrs McDonagh, arranged for all staff to have the vaccine and began consulting staff about their proposal to offer it to staff and to gather information needed to book it. Ms Allette did not provide her NHS number to receive a vaccine. At about this time Mr McDonagh was in contact with the Home’s insurers who relayed to him that the home would not be covered if unvaccinated staff contracted Covid-19 and either died or suffered other consequences from infection, including passing it on to residents who died or otherwise suffered lasting effects from it.
Days before the vaccines were due to be administered to staff, the Home suffered a serious Covid-19 outbreak, resulting in the death of several residents and half of staff being required to self-isolate at home.
Considering the risk to residents, the input of the insurers and also having experienced the outbreak at the Home, Mr and Mrs McDonagh made vaccination for the Home’s staff compulsory. Mr McDonagh spoke with Ms Allette on the phone to ask why she had not provided her NHS details for the vaccine and it soon became apparent Ms Allette did not want to take it.
Mr McDonagh discussed Ms Allette’s reluctance, stressing that if she refused it her job would be at risk. Ms Allette explained her reluctance on information she found on the internet alluding to the vaccine being unsafe due to the speed at which it had been developed and that government information concerning the vaccine was inaccurate and the risks of the vaccine were not being reported. Mr McDonagh relayed the information he had been provided from Public Health England, the NHS and elsewhere in an effort to convince Ms Allette to get vaccinated. Ms Allette would need to get vaccinated the next day and Mr McDonagh asked her to ‘sleep on it’.
Ms Allette did not get vaccinated and the next time she reported to work she was suspended and informed she was invited to a disciplinary hearing to face allegations of refusing reasonable management instructions by not taking the vaccine. At the hearing, Ms Allette claimed she was hesitant to take the vaccine for religious reasons, but when pressed about this admitted she had not mentioned this in her previous conversation with Mr McDonagh. Mr McDonagh concluded her real reason for refusing the vaccine was her scepticism based on online information she had read. Mr McDonagh concluded this was not a valid reason for refusing the instruction and ultimately dismissed her for gross misconduct.
Ms Allette appealed the decision, but her appeal was dismissed. Ms Allette then brought claims for unfair dismissal, part of which included a ground that her rights under Article 8 of the European Convention on Human Rights (ECHR) to respect for a private life had been infringed. She did not bring any discrimination claim.
The tribunal concluded that the Home was entitled to dismiss Ms Allette in the circumstances of the case. Though there was no contractual right to require the vaccination, nor any clear consequences for refusing it in the disciplinary policy, the tribunal considered that the Home had a reasonable legitimate basis for requiring staff to be vaccinated, not least for the protection of staff and residents but also for the fact that if staff failed to do so the employer would be left open to liabilities due to the requirements of their insurers.
The tribunal concluded that Article 8 ECHR had been engaged by the requirement to be vaccinated, but that Ms Allette’s rights in this respect had to be balanced in light of the Article 8 rights of the other staff members and residents (in relation to the risks of having an unvaccinated person in the home). Given those factors, and the factual background and circumstances of the Home and the UK in general in the winter of 2020/2021, the tribunal concluded Ms Allette’s Article 8 rights had not been breached. Her claims were dismissed.
This case will be of interest to employers who were faced with similar circumstances to the Home. In particular, it is worth noting that the tribunal considered the specific perils faced by the care home and its residents at the time Ms Allette refused the vaccine. Although the tribunal was keen to point out the importance of the specifics of the case, a few useful insights can be highlighted:
- The situation created by the pandemic required employers to act and apply new rules and requirements on staff, even where there was no explicit contractual or policy basis for them;
- Whilst employers were obliged to consider alternatives to dismissal, they were not obliged to furlough staff to avoid the conflict created by a refusal to vaccinate;
- The employee’s reasons for refusing to vaccinate were important. In Ms Allette’s case, her grounds were based on unsubstantiated claims found on the internet rather than on any religious belief. She could not produce reliable reports or data to back up her scepticism;
- Not following the ACAS code on disciplinaries is not fatal to a defence in these circumstances, provided there were good reasons for these; and
- Clear and precise notes were crucial – Mr McDonagh’s version of events were preferred by the tribunal due to them being taken contemporaneously and consistency. These helped to show the tribunal precisely why decisions were being taken which was ultimately why the tribunal was able to show they were fair.
Whilst indicative of whether or not a dismissal was fair in these circumstances, it should be noted that this first-instance decision is not binding. It will therefore be interesting to see whether this case, or one similar, reaches the EAT to set out any specific precedent.
How Wrigleys can help
The employment team at Wrigleys is expert in helping charities, third sector and education sector clients with complex employee relations, including disciplinary procedures, through providing proactive advice.
Throughout the pandemic we have provided up to date guidance and advice on managing employers’ covid responses.
We can also help by reviewing your grievance and disciplinary policies and procedure so that problems are dealt with promptly and fairly and tribunal claims less likely to arise.
Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ governance and regulatory obligations impact on employment processes and decisions. Our CSE team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.
If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100.
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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.