In the recent case of Allette v Scarsdale Grange Nursing Home Limited, an Employment Tribunal has found that a care assistant’s refusal to be vaccinated against Covid-19 constituted a failure to follow a reasonable management instruction and she was therefore fairly dismissed.
Frontline NHS workers and CQC regulated providers of healthcare are currently legally required to be fully vaccinated by 1 April 2022. With shortages of staff and changing Covid-19 variants, the Secretary of State is now considering whether mandatory vaccinations should still be a requirement for deployment.
Employer introduces mandatory vaccinations
The employer is a family run business, employing 65 staff and providing residential care for up to 52 dementia sufferers.
In December 2020, the government began to roll out the vaccine programme to care homes and NHS frontline staff to help combat the vulnerabilities of the sector. The employer was due to have their staff vaccinated in December 2020, but an outbreak of Covid-19 meant that this was delayed until January 2021. The outbreak caused several residents to die, and staff members who contracted Covid-19 were required to self-isolate.
The employer then required mandatory vaccinations of all staff members to remain employed. This decision was made following the outbreak in December 2020, and the employer considered it a proportionate step to protect residents, staff and visitors. Further to this, the employer’s insurer had stated that they would not provide public liability insurance for Covid-19 related risks after March 2021, meaning the employer would have faced the risk of liability if an unvaccinated employee was found to have passed Covid-19 onto a resident or visitor.
The Claimant, Ms Allette, refused to be vaccinated. She originally explained that her concerns were that she did not trust the vaccine, that it had been rushed through without proper testing, that she had read government conspiracies and that its safety could not be guaranteed.
The employer invited Ms Allette to attend a disciplinary hearing on the basis that she had failed to follow a reasonable management instruction, by having refused mandatory vaccinations. At the disciplinary meeting Ms Allette informed her employer that she was refusing the vaccine as she was Rastafarian and therefore could not take any form of non-natural medication. The employer decided, and the Tribunal later agreed, that had this been the real reason for her refusal, she would have raised it earlier. Ms Allette was then dismissed for gross misconduct for failure to follow a reasonable management instruction.
Ms Allette brought claims for unfair and wrongful dismissal. The Tribunal rejected these claims and found that the dismissal was proportionate and fair in the circumstances.
Government mandated vaccines
At the time of the above dismissal the government had not mandated vaccines in the health and social care sector. However, since the above dismissal vaccinations have been a condition of deployment in care homes. The government also intended to require mandatory vaccinations in the NHS but has announced a review and it may be that this requirement is reversed.
This may be because when the current legislation was proposed, Delta was the dominant variant, and evidence at the time showed that being vaccinated significantly reduced the risk of catching and spreading the virus. However, the current dominant variant is Omicron and whilst it seems to be more contagious than Delta, the side effects appear to be milder.
Despite the U-turn that the government appear to be taking, it may still be possible for employers to insist on mandatory vaccinations for staff but it would be in very special circumstances and they would have to demonstrate that it is a fair and proportionate step to take. We would suggest that employers take legal advice prior to implementing a mandatory vaccine policy.
For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
