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January 27, 2022

Tribunal Tales – C Allette v Scarsdale Grange Nursing Home Limited

The Claimant was employed as a care assistant with the Respondent from December 2007.  Her duties included attending to the personal care needs of the residents in the nursing home. The Respondent’s nursing home provides care for those suffering with dementia. At the end of 2021 the Respondent decided they would make vaccinations mandatory following an outbreak at the home which resulted in the deaths of some residents and around half the staff having to self-isolate.

The Claimant refused to get the vaccine for a number of reasons. She did not trust the safety of the vaccine, and, according to her, she was also practising Rastafarian and not supposed to take any form of non-natural medicine. Additionally, she had already contracted Covid so believed she had natural immunity. In the course of investigations, the Respondent came to the belief that the religious aspect of her objection was not genuine. She had not mentioned her faith until the disciplinary hearing and none of her colleagues were aware of her beliefs. The tribunal held that the real reason for her refusal was a distrust of the safety of the vaccine based on what the Claimant had read online.

On 12 January 2021 the Claimant was informed that there was a risk of disciplinary action if she refused the vaccine. The disciplinary hearing took place on 28 January 2021. The allegation was that the Claimant had refused to follow a reasonable management instruction to have the Covid-19 vaccination and that her reasons for refusing the vaccine were not reasonable in the circumstances. She was dismissed on 1 February 2021.

The Claimant raised a claim at the Employment Tribunal for unfair and wrongful dismissal. Both claims were unsuccessful. The Judge also held that Article 8 of the European Convention on Human Rights was engaged and her dismissal interfered with her right to respect for private life, but the Respondent was justified in taking the action they did. They needed to protect their residents and they had also been told that there would be major issues with employer and public liability insurance. The insurers informed the Respondent that since the Claimant was the only staff member refusing the vaccine it may make it easier to trace transmission back to her and open the door for court action. Enforcing a policy of mandatory vaccination and dismissing the Claimant for a refusal to comply was a proportionate means of achieving a legitimate aim, which was to protect the health and safety of residents, staff and visitors to the nursing home.

It was only a matter of time before a case relating to vaccinations made its way to the Employment Tribunal. While this decision may seem like good news for employers, it is absolutely not a green light for all employers in every sector to make vaccinations compulsory for staff. It is critically important that there is an objective justification for measures such as mandatory vaccinations. The Judge in this case noted that while the employer acted reasonably, they could have given the Claimant more opportunities to change her mind.  The Judge stated that they could have placed the Claimant on unpaid or paid leave and could have sought further independent scientific information to seek to persuade her that the vaccine was safe and necessary. Employers should bear these options in mind.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne

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