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Dismissing a care home assistant as she refused to be vaccinated was fair and reasonable – a court rules
Chris King, Associate Solicitor at Napthens, outlines the case of Allette v Scarsdale Grange Nursing House Ltd and what it means for the future.
The Department of Health and Social Care carried out a review on care homes for older adults. Care homes had been significantly affected by the pandemic, not only because of the residents’ vulnerability but also because of the residents’ daily contact with staff and other residents. Following this review, in July 2021 it was decided that it would soon be a compulsory requirement for persons working in or providing services in CQC- registered care homes in England to be vaccinated. This was to protect the residents and their carers. This requirement was finalised and made law in November 2021.
This legislation means that the care home has a responsibility to ensure that any non-resident entering the premises to work or provide services (who is over the age of 18) has proof that they have been fully vaccinated. This includes but is not limited to care home nurses, agency staff, volunteers, caterers, builders, cleaners and even hairdressers.
From April 2022, the compulsory vaccination legislation will cast a wider net to also include any ‘relevant healthcare staff’.
Residents themselves and their visitors are not required to have been vaccinated. Any persons attending under emergency circumstances would also not be required to prove they are vaccinated – such as ambulance or maintenance staff.
But what if an existing employee in the care home is unvaccinated and refuses to be vaccinated?
- Is the employee going to automatically be dismissed?
- On what grounds could you dismiss the employee?
- Can you force the employee to get vaccinated?
The judgment from the case of Allette v Scarsdale Grange Nursing House has provided some guidance on how the Employment Tribunal may approach such cases.
In this case, the employee was an assistant in a care home for people with dementia.
The care home’s insurance had advised the home that they would not provide public liability insurance for COVID-related risks from March 2021. The home was therefore at risk if unvaccinated staff infected residents with COVID-19.
In January 2021, the home made it a condition of continued employment that all workers must be vaccinated. The worker did not want to have the vaccine as she was concerned about how quickly it was developed and if it was safe. She also made reference to a ‘Government Conspiracy’.
The care home invited her to a disciplinary hearing and at the hearing she announced for the first time that she opposed the vaccine on Rastafarian religious grounds.
The employer explained that having unvaccinated staff was a risk for the care home and they could be found liable if unvaccinated staff passed COVID-19 on to residents.
The care home concluded that the worker did not have a reasonable justification for refusing the vaccine and she would be dismissed for failure to carry out a reasonable instruction from management.
The worker then brought a claim for unfair dismissal and wrongful dismissal.
- The Tribunal rejected both claims
- The Tribunal compared the worker’s unsubstantiated fear of the safety of the vaccine and her delayed explanation or rejecting the vaccine on religious grounds against the care home’s objective to protect the residents and to also comply with their insurance conditions. This included an assessment of the employee’s right to respect for a private life under Article 8 of the European Convention on Human Rights against the care home’s primary legitimate aim of protecting service users and staff and ensuring that they did not breach their insurance policy and it accepted that the care home’s aim should outweigh any impact on the employee’s Article 8 rights
- Although the Tribunal accepted that the employee’s fear of and scepticism about the vaccine was genuine, the requirement to be vaccinated was a reasonable management instruction and she had no medical authority or clinical basis for refusing
- The employer’s request for the worker to be vaccinated was found to not be an onerous or unjust request
While this decision is a first instance decision and therefore not legally binding on other Tribunals, it is an interesting indication of how Tribunals will treat unvaccinated dismissal cases, especially as in this matter, the compulsory vaccination requirement was not yet legislation.
This case could be encouraging for other industries who are keen to make compulsory vaccination a condition of employment.
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