In the recent case of Allette v Scarsdale Grange Nursing Home Ltd (1803699/2021), the dismissal of a care assistant on the grounds she refused to be vaccinated was held to be fair.
Interestingly the dismissal in this case took place before the legal obligation on care home workers to be vaccinated was introduced.
In order for a dismissal to be fair, an employer must be able to show:
- That the reason for dismissal falls within one of the “five potentially fair reasons” for dismissal. These are conduct, capability (which can include poor performance and ill health), redundancy, breach of a statutory requirement and “some other substantial reason”.
- That it acted reasonably in all the circumstances. Here, the tribunal will consider whether the employer followed a fair procedure and whether it was reasonable for the employer to dismiss for that reason, considering all the circumstances including the size and administrative resources of the business.
Where misconduct is the reason for dismissal, the tribunal will judge whether the employer has satisfied the “Burchell” test (British Home Store Limited v Burchell  ICR 303n). This involves assessing whether, at the time of dismissal:
- The employer had a genuine belief in the employee’s guilt;
- It had reasonable grounds for that belief; and
- At the time it held that belief, the employer had carried out as much investigation as was reasonable in the circumstances.
Having done so, the next question will be whether the dismissal fell within the “band of reasonable responses” – which means the tribunal must decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted. The range of reasonable responses test applies both to the decision to dismiss and to the investigation. If the actions of the employer are considered by the tribunal to fall within this “band” then the dismissal will be fair.
Ms Allette was employed by Scarsdale Grange Nursing Home Ltd (“the Home”) as a care assistant for 13 years until her dismissal on 1 February 2021. The Home provided residential care to dementia sufferers and Ms Allette’s role involved providing personal care to the residents.
In December 2020, as the (then) new vaccination programme was being rolled out to nursing home residents and health sector workers, the Home made arrangements for staff to have their first vaccination. However, before this could happen, the Home had an outbreak of Covid-19. Several residents and staff contracted the illness (including Ms Allette) and a number of residents sadly died.
After the outbreak, the Home decided to make it a condition of continuing employment that all staff be vaccinated. Ms Allette did not wish to have the vaccination and she explained her reasons for not wanting to be vaccinated during a telephone call with one of the Home’s owners, Mr McDonagh, on 12 January 2021. She told Mr McDonagh that she did not trust the vaccine was safe, that she felt it had been rushed through without proper testing and that she had been reading on the internet about how the vaccine was unsafe and a government conspiracy.
Mr McDonagh explained to Ms Allette why the Home considered the vaccine safe, referring to guidance from PHE and the government, and why they wanted her to have it. Ms Allette was warned that, in the absence of reasonable grounds for the refusal to follow the instruction to have the vaccine, she could face disciplinary action.
Ms Allette was subsequently suspended on full pay pending a disciplinary hearing to answer the allegation that she had refused to follow a reasonable management instruction.
At the disciplinary hearing, Ms Allette told Mr McDonagh that the reason for her refusal to have the vaccine was due to her religious beliefs and Rastafarianism. She claimed that she had mentioned this during the previous telephone call. She also said Mr McDonagh knew she was a Rastafarian.
Mr McDonagh told Ms Allette that she had not mentioned any religious beliefs during their telephone call and that he had taken an attendance note of the conversation at the time. Ms Allette eventually conceded at the hearing that this was the case. In relation to her claim that the Home knew she was a Rastafarian, Mr McDonagh said he did not know this.
After the hearing, Ms Allette was dismissed for gross insubordination on the grounds that she refused to follow a reasonable management instruction. She subsequently brought claims for unfair dismissal and wrongful dismissal. She also claimed that her rights under Article 8 (the right to respect for an individual’s private and family life) of the European Convention on Human Rights (“ECHR”) had been violated because her dismissal was an unjustified interference with that right.
The tribunal concluded that Ms Allette had not been unfairly dismissed.
Their findings were as follows:
1. That Ms Allette’s dismissal was not in violation of Article 8 and therefore did not render her dismissal unfair.
The tribunal said that Ms Allette’s dismissal for refusing to have the vaccine did interfere with the right to respect for her private life. However, the tribunal said the interference was justified. The tribunal held that the Home had a legitimate aim for both the management instruction requiring employees to be vaccinated against Covid-19 and Ms Allette’s dismissal for unreasonably refusing to comply with that instruction, which was to protect the health and safety of residents, staff and visitors to the Home during the Covid 19 pandemic. The Tribunal also held that Ms Allette’s dismissal was proportionate to achieving that aim because of the potentially serious consequences of any increased risk of Covid-19 at the Home and the strength and finality of Ms Allette’s refusal.
2. That she had been fairly dismissed by the Home.
Applying the Burchell test, the tribunal found that the dismissing officer, Mr McDonagh, genuinely believed Ms Allette was guilty of gross misconduct. It found that Mr McDonagh genuinely believed that the real reason for her refusal was not her religious beliefs, as she claimed, but was based on a scepticism about the safety of the vaccine. Mr McDonagh’s belief was based on the manner in which Ms Allette raised these beliefs at the disciplinary hearing (whereby she initially claimed she had mentioned these beliefs in a prior conversation with Mr McDonagh and then admitted that she had not mentioned them) – a manner that led Mr McDonagh to conclude she was being dishonest about her true reasons.
Next, the tribunal considered whether Mr McDonagh had reasonable grounds upon which to conclude Ms Allette was guilty of misconduct. Here, the tribunal noted that Mr McDonagh had sought to persuade her of the vaccine’s safety, referring to medical evidence and guidance from PHE and the government that the vaccine was safe and would save lives. In contrast, Ms Allette said she was sceptical of that guidance and suspicious of the vaccine because of what she had read on the Internet, without presenting any medical authority or clinical basis for her beliefs.
Furthermore, the circumstances of the Home at that time had to be taken into account, including the recent deaths, the state of the pandemic, the level of ongoing risk to residents, staff and visitors, the information from PHE, and the urgency with which measures to protect residents needed to be put in place. The tribunal concluded that it was not outside the range of reasonable responses for an employer to conclude that an employee who was merely sceptical of the advice and did not trust the vaccine did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine. Accordingly, the tribunal found that the Home acted within the range of reasonable responses of a reasonable employer by dismissing Ms Allette.
3. That she was not wrongfully dismissed.
The tribunal found that Ms Allette’s actions in refusing to be vaccinated was an unreasonable refusal to comply with a reasonable management instruction because her reason was her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than religious belief. Her actions were considered by the tribunal to fall within the definition of gross misconduct set out in the Home’s disciplinary policy, entitling the Home to summarily dismiss her without notice.
Points to note and action to take
- It is important to point out that this was a first instance decision, which means it is not binding on other tribunals. Also, the judge made a point of saying that their decision was based entirely on the facts of the case and should not be taken as a general indication that dismissal for refusing to be vaccinated is fair.
- The above aside, it is an interesting case for a number of reasons. It is one of the first (of presumably many) cases to deal with the issue of whether it is fair to dismiss an employee for refusing a vaccine and gives us insight into the type of deliberations a tribunal will make. The tribunal took care to focus on what the conditions were like in early 2021 and the prevailing medical advice at the time, rather than evaluating the Home’s decision-making in the light of everything that we now know about the pandemic and vaccinations. The tribunal also considered carefully the employee’s reasons for refusal and balanced the interference with her private life against the Home’s legal and moral obligations to protect its residents, ultimately finding that the risk to residents outweighed that interference.
- Although not binding on other tribunals, the decision should provide some comfort to other employers in the care sector facing claims because they made similar decisions at the peak of the pandemic to dismiss employees who refused the vaccine (before it became a legal requirement for care home staff to be vaccinated). However, the success of an employer’s defence in these circumstances will depend on whether the employer acted fairly and carried out a reasonable investigation into the employee’s reasons for refusal as the employer did in this case.
- The outcome of the case could have been different if the employee in this case had said at the outset that she objected to having the vaccine on religious belief grounds. Where an employee’s reasons for refusal are related to any protected characteristic, employers must proceed with caution since to dismiss in those circumstances could lead to a claim of indirect discrimination. To defend an indirect discrimination claim, an employer would have to be able to objectively justify its decision to dismiss which is much harder to demonstrate than showing that its decision fell within the band of reasonable responses available to an employer.
- Employers should ensure that before taking any disciplinary action against an employee who refuses to be vaccinated that they have: (a) thoroughly considered and can strongly justify their reasons for requiring the employee to be vaccinated (b) investigated fully the reasons why an employee has refused the vaccine and (c) explored reasonable alternatives to taking disciplinary action.
You can read the full judgement here: https://assets.publishing.service.gov.uk/media/61e68df88fa8f50585ecbafb/Ms_C_Allette_-V-_Scarsdale_Grange_Nursing_Home_Ltd_1803699.2021.pdf