Is summary dismissal of a care worker for refusing an instruction to be vaccinated an unfair and wrongful dismissal?
No, on the facts, it was held in Ms C Allette v Scarsdale Grange Nursing Home Limited.
Facts
Ms Allette (A) was employed by Scarsdale Grange Nursing Home Limited (the Home) as a Care Assistant. Once the Covid vaccine became available in December 2020, the Home made arrangements for staff to have their first vaccination on 22 December 2020. This was delayed by a few weeks due to an outbreak of Covid in the Home, in which A contracted the virus. The events pre-dated the requirement for all care staff in English-registered care homes to be vaccinated unless clinically exempt.
On 12 January 2021 a director of the Home informed A by telephone that she was required to receive the vaccine the following day, and failure to do so would result in disciplinary action. During this conversation, A stated that she did not want to take the vaccine because she did not believe it to be safe. However, A did not refer to any medical authority for this belief, nor did she mention any religious belief. Instead A informed the director that she would wait until the vaccine had been properly rolled out before deciding whether to have it.
As a result, A was suspended and invited to a disciplinary hearing after which she was summarily dismissed for gross misconduct on the ground that she had failed to follow a reasonable management instruction to be vaccinated.
A appealed this decision, and a full rehearing took place. At the appeal hearing, it was made clear to A that the Home believed her refusal represented an unreasonable risk to the health and safety of the residents, staff and visitors, and exposed the Home to legal claims and inability to obtain insurance cover. Further, A’s acceptance that the vaccine would reduce the risk of death or serious injury, but still refused to take it, was unreasonable and justified a dismissal for ‘some other substantial reason’.
A claimed unfair and wrongful dismissal.
Law
S.94 of the Employment Rights Act 1996 (ERA) provides that an employee with the appropriate qualifying service has the right not to be unfairly dismissed, and under s.98 that an employer must show the reason for dismissal was for one of five potentially fair reasons, including conduct and some other substantial reason justifying dismissal.
S.98(4) provides that where an employer has shown a fair reason, the question of whether the dismissal was fair or unfair will be determined by reference to:
‘(a) …whether in the circumstances (including the size and administrative resources of the employer) the employer acted reasonably or unreasonably in treating it [the reason] as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.’
A wrongful dismissal claim will arise where an employee is dismissed in breach of contract, usually where an employer dismisses without required notice. Where an employee has been guilty of gross misconduct an employer is entitled to dismiss without notice or pay in lieu and a claim of wrongful dismissal will not succeed.
Decision
The Employment Tribunal (ET) held that the Home had a legitimate aim in requiring staff to have the Covid-19 vaccine and for dismissing A when she refused. Those aims included to minimise risks to other staff and to residents and visitors who may not be able to be vaccinated. Notwithstanding A’s right to a private and family life under the European Convention on Human Rights, it was a reasonable and proportionate management instruction for the Home to require A to be vaccinated. A’s refusal to comply with the Home’s instructions to have the vaccine was not reasonable and, despite her assertions during the disciplinary process, was not related to her Rastafarian beliefs.
Given the context (Covid outbreak and deaths in the Home, the growing pandemic nationally, and widespread publicly available information about vaccine safety), all of which was relayed to A, the Home acted within the range of reasonable responses in reaching the decision to dismiss her.
The ET further held that the refusal to take the vaccine amounted to gross misconduct entitling the Home to dismiss without notice or pay in lieu. A’s dismissal was fair and not wrongful.
However, the decision on both unfair and wrongful dismissal was based on the specific circumstances of the case and does not, the Judge stated, mean that any dismissal for refusal to be vaccinated would be fair.
Comment
Sean McEntee, Solicitor in our Employment team commented:
“The decision is a tribunal decision only and not binding on other tribunals, though it will be persuasive and provides a framework for addressing complex issues arising from vaccination requirements.
“Mandatory vaccination has not been introduced for Scottish registered care homes and this decision is therefore more useful for these and other businesses considering mandatory vaccination requirements. Any such decision must be carefully considered by reference to the aims to be met and whether the requirement is proportionate, with an eye on risks of discrimination and how to manage staff who refuse.
“It is important to stress that the ET commented that a refusal to be vaccinated would not necessarily amount to gross misconduct, or even misconduct, in another case on different facts.
“Get in touch with one of the team if you are considering implementing mandatory vaccination.”
Article published on 23 February 2022.
