Care home worker who refused Covid vaccine was fairly dismissed, tribunal rules

Judge finds claimant’s unwillingness to have the jab amounted to gross misconduct and put staff, visitors and residents at risk

A care home assistant who refused to receive the Covid-19 vaccination when instructed to do so by her employer was fairly dismissed, a tribunal has found.

Ms C Allette, who was employed at Scarsdale Grange Nursing Home from December 2007 until February 2021, told the court that taking “any form of non-natural medication” would go against her Rastafarian beliefs.

However, the tribunal found that the claimant refused the vaccine because “she did not trust what [the care home’s director] or the authorities were saying at the time about the safety of the vaccine”, and was aware that her decision would “potentially put others at risk”.

Allette, whose role involved attending to the personal care of residents at the Sheffield-based home, was initially offered the Covid-19 vaccine on 22 December 2020, after the government began its rollout to health workers and residents, but refused.

The planned vaccinations were postponed until 13 January 2021 after an outbreak of the virus at the home, which resulted in half the staff being told to self-isolate and several deaths among patients. At the time nationally, there were around 1,500 recorded deaths from Covid-19 per day.

On 12 January, in a 43-minute phone conversation with the care home’s director, Mr McDonagh, Allette listed her concerns about the vaccine, which included a belief that the government was lying about its safety. However, there was no mention of her religious beliefs or reservations against pharmaceutical medicines during that initial conversation.

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During the call, McDonagh attempted to reassure Allette but made clear that she would be suspended and disciplined if she refused the vaccination the following day. When she arrived for her next shift on 16 January, she was handed a letter of suspension.

Her religious beliefs were first raised at the virtual disciplinary hearing on 28 January. When McDonagh asked other staff members about her Rastafarian beliefs, no one appeared to be aware of them.

During the hearing, McDonagh also raised his concerns that the home faced the risk of liability if a resident or visitor contracted the virus from unvaccinated staff members, adding that as the claimant was the only unvaccinated staff member, “it would be easier to trace transmission to her and make legal action more likely”. He had also been notified by the home’s insurers that after March 2021, it would not provide public liability insurance for Covid-related risks.

Allette argued that as the only unvaccinated staff member, she would not need to be vaccinated to protect others. She also claimed that McDonagh had not provided her with expert advice about the safety of the vaccine.

However, the tribunal found that McDonagh’s attendance notes from the phone call on 12 January was more acceptable evidence than the claimant’s recollection of the meeting.

The tribunal found that while there was no contractual term requiring the claimant to have the Covid vaccine or any other vaccine, the home’s instruction to make vaccination mandatory for all staff was a “reasonable management instruction” and that the claimant’s refusal amounted to gross misconduct.

Nathan Donaldson, employment law solicitor at Keystone Law, said that given the context of national lockdowns and high mortality rates in the home at the time, the claimant’s refusal to be vaccinated was unreasonable.

“The requirement to be vaccinated was a reasonable management instruction in the context of the employer being a small nursing home provider and that its carers were providing close personal care to vulnerable residents… The employer also raised a salient risk of withdrawal of its insurance cover, if staff members were unvaccinated.”

He added that had there been “legitimate medical reasons” for the claimant being unvaccinated, the outcome of the case may have been different.

While the decision is not binding on other employment tribunals, Donaldson added that it was “an early indication of the approach other employment tribunals may take to cases concerning an employer's voluntary decision to impose vaccination requirements on its staff”.

Alan Price, CEO of BrightHR, said that organisations should mimic the approach followed by the respondent. "Had they fallen short in either of these areas, for example had no meeting notes, unreasonable timeframes or an incomplete investigation, etc., the outcome may have been substantially different,” he said.

However, he stressed that the decision was not a legally binding authority.

He added that the respondent could have done more to inform the claimant about the safety and efficacy of the vaccine, and to provide her with paid or unpaid leave.

“This will be of particular relevance given the extensive resources now available on vaccination. As such, tribunals may take a stricter view that dismissals should only be a last resort, after fully exhausting all alternative options”, he said.

Richard Fox, employment partner at Kingsley Napley, said the ruling would be of particular interest to private sector employers considering the introduction of mandatory vaccine policies for their staff because the dismissal happened before vaccination became a legal requirement for care workers.

“This decision may help fortify employers in their belief that it will be possible to introduce mandatory vaccination and defend their position if challenged in court."

Scarsdale Grange Nursing Home has been contacted for comment. Allette could not be contacted.