Employment Tribunals

Covid-19 vaccine refusal - nursing home worker fairly dismissed for refusing the vaccine-2

A nursing home worker fairly dismissed over Covid-19 vaccine refusal

Despite accepting Ms Allette’s (A) scepticism, Employment Tribunal has found her ‘fairly dismissed’ by her employer for Covid-19 vaccine refusal. 

The requirement to be vaccinated was in the Tribunal’s opinion a reasonable management instruction and A had no medical authority or clinical basis for refusing. 

Nursing Home’s requirement to get vaccinated

In December 2020, the Scarsdale Grange Nursing Home (SGNH) was due to begin the roll-out of the Covid-19 vaccine to its residents and staff.

Unfortunately, just before the roll-out, the nursing home was hit with an outbreak. The outbreak resulted in 33 staff (including A) and 22 residents being infected, and a number of resident deaths.

The vaccinations consequently had to be rescheduled from December 2020 to January 2021.

In order to ensure the staff get their vaccinations, SGNH made it a condition of continued employment.

At this point, there was no statutory obligation on care home workers to be vaccinated. 

The nursing home worker’s refusal to have the covid-19 vaccine administered

Ms Allette (A) claimed to only become aware of the vaccine roll-out and the continued employment condition on 12 January 2021 – the day before her vaccination was due to be administered.

A refused to have the vaccine providing the following reasons in a telephone call with the home’s director: 

  • She did not trust the Covid-19 vaccine’s safety,
  • The vaccine had been rushed without adequate testing,
  • She had read stories on the internet about a Government conspiracy,
  • No one could guarantee that the Covid-19 vaccine was safe. 

Refusal of the Covid-19 vaccine leading to a disciplinary hearing

Following A’s refusal of having the vaccine administered, a disciplinary hearing was arranged for 28 January. 

During the hearing, for the first time, A indicated that the vaccine was against her Rastafarian beliefs. The home’s director had not known before that point that A was a practising Rastafarian. 

The director explained to A that their insurers had advised them they would not provide Public Liability insurance for Covid-related risks after March 2021. Consequently, the nursing home would face the risk of liability if an unvaccinated staff were to infect other staff, residents or visitors.

Following the hearing, the director concluded that A did not have a reasonable excuse for refusing the Covid-19 vaccine. If she remained unvaccinated, she would pose a risk to the health of the home’s residents, staff and visitors. 

A decision was made that the home could not make an exception for one member of staff and her dismissal followed. The dismissal was on the grounds of refusing to follow reasonable management instruction.

A subsequently took her employer SGNH to the Leeds Employment Tribunal claiming unfair and wrongful dismissal. 

Employment Tribunal claim for unfair and wrongful dismissal for refusing the Covid-19 vaccine

In A v SGNH, the Employment Tribunal has found that the dismissal of A for refusing to be vaccinated against COVID-19 in January 2021 was fair. 

The tribunal accepted that SGNH’s primary legitimate aim was to protect its staff, residents and visitors.

The secondary legitimate aim – to avoid the risk of breaching the home’s insurance policy, was also accepted by the Tribunal.

The Employment Tribunal’s decision explained

In the employment tribunal’s view, the home’s new mandatory vaccination policy was in line with a pressing social need of reducing the risk to residents. 

A’s fear and scepticism about the vaccine were considered genuine. However, the Tribunal noted that they were unreasonable in the circumstances since she had no medical authority or clinical basis for not receiving the vaccine. 

In addition, the nursing home SGNH was a small employer with a legal and moral obligation and responsibility to protect its vulnerable residents. Most of them suffered from dementia and needed to be protected.

The Employment Tribunal, therefore, accepted SGNH’s submission. Its decision to impose vaccination in January 2021 had to be seen in light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time. 

Given the nature and type of SGNH’s business and considering the vulnerability of its residents, the director of the nursing home was required to do some difficult decision-making. In the context of the case, the interference with A’s private life was considered proportionate.

In terms of the reasonableness test under S.98(4) of the Employment Rights Act 1996, read so as to give effect to A’s Article 8 rights, the tribunal made the decision that it was reasonable for the nursing home’s director to conclude that an employee who was only sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the Covid-19 vaccine administered.

The Tribunal also found that the director genuinely did not believe that his employee’s refusal was connected with religious belief as she did not disclose this information until later. 

Moreover, the Tribunal rejected A’s argument that the home’s director had unreasonably failed to inform her about the vaccine and to properly address her scepticism. It was found that he had referred her to advice from Public Health England (PHE) and the Government, which was widely available on the internet. It was concluded that A was capable of researching independent scientific material for herself.

During the tribunal hearing, it was presented to the director that there was no real benefit to be obtained from vaccinating A since she had recently recovered from Covid-19 and therefore would have antibodies. However, the tribunal accepted the director’s evidence that the advice from the PHE at the time was that it was possible to contract and transmit Covid-19 more than once.

In the circumstances, the employee’s dismissal was within the range of reasonable responses. 

Read the full transcript of the case here.

Have you been unfairly or wrongfully dismissed by your employer? 

If you believe you have been unfairly or wrongfully dismissed by your employer, get in touch with our expert Employment Law Solicitors today to discuss your case. You can either call us on 0800 612 9509, or complete one of our contact forms. Alternatively, complete our Employment Tribunal Claim Assessment. 

Inner house concludes school fairly dismissed teacher

Inner house concludes school fairly dismissed teacher suspected of possessing indecent images.

Despite being cleared of the charges, the teacher was dismissed due to safeguarding concerns. Was his dismissal unfair?

No, concluded the Inner House of the Court of Session in L v K.

Case background

The case concerned a teacher who had been arrested for possession of a computer containing indecent images of children.

The teacher shared the computer with his son but ultimately the charges against the two were dropped.

The teacher informed his employer – the school, as to what had happened which led to an investigation.

At an investigatory hearing, the teacher stated he did not recall where he had bought the computer. He also said that his son had access to the device and that the police had told him it contained illegal material.

Following the hearing, disciplinary proceedings were initiated by the school.

The primary reason for the teacher’s dismissal was that while it couldn’t be proved the teacher had downloaded the images onto his PC, the fact alone that he may have done it gave risk to a safeguarding concern.

Moreover, the school was also concerned that the situation would affect their reputation. Breakdown of trust was also cited.

The dismissed teacher appeals the decision

Following the dismissal, the teacher made a claim of unfair dismissal in the Employment Tribunal (ET).

The ET, however, was satisfied that the reason given for the respondent’s dismissal was in fact genuine and substantial. It said that the school’s decision, while difficult, was responsible.

The teacher was not content with this outcome and appealed the ET’s decision.

The 5 grounds came to the view; that he could only be fairly dismissed by the school if the evidence indicated and the school was satisfied that he was responsible for downloading the images.

A decision of unfair dismissal was subsequently substituted for the original verdict of the ET.

On appeal of this decision to the Court of Session, it was submitted for the school that the Employment Appeals Tribunal (EAT) had in fact erred in its approach to the appeal.

One of the arguments against the teacher’s stance included a denial that there were any indecent images on his computer. This was a position inconsistent with his earlier statements and therefore rejected by the ET.

Furthermore, the EAT had not engaged with the issue of the school’s statutory duty to protect children which was an imperative part of the school’s decision to dismiss the teacher.

The Final Decision

The Court of Session concluded that in some circumstances it will be reasonable for an employer to dismiss an employee who may be innocent if there is a genuine and substantial reason to justify the dismissal. This was in fact such case.

Lord Malcolm, who delivered the court’s decision, said there was a proper basis for believing that the teacher was probably guilty.


You can read the full court transcript here.

Tribunal Procedure.

Wrong Early Conciliation number stated on a Form ET1 is potentially fatal.

The ET was concerned with two claims lodged by the Claimant. The first gave an incorrect ACAS early conciliation (“EC”) number – relating to a different Claimant and a different claim; the second gave the number of an EC certificate that was invalid. Neither had been rejected by the ET under Rule 10 ET Rules nor had the claims been referred to an Employment Judge under Rule 12. At a Preliminary Hearing before the ET, the Claimant applied to amend his claim to correct the ACAS EC number. The ET allowed the application, see this as consistent with the overriding objective and the general principle of access to justice given that this was a minor amendment to rectify a technical error. The Respondent appealed.

Held: allowing the appeal

The Claimant’s claims failed to include an accurate ACAS EC number and were thus of a kind described at Rule 12(1)(c) ET Rules. Pursuant to Rule 12(2), the Employment Judge was therefore required to reject the claims and return the claims to the Claimant; that was a mandatory requirement that was not limited to a particular stage of the proceedings. As this would mean that there was no longer a claim before the ET, the Employment Judge had no power to allow the Claimant to amend; the correct procedure was instead that laid down by Rule 13. The Claimant argued that the ET’s decision could be upheld by virtue of Rule 6, read together with the overriding objective. Rule 6 could not, however, import a discretion into a mandatory Rule Cranwell v Cullen UKEATPAS/0046/14, [2015] UKEAT 0046_14_2003 and Baisley v South Lanarkshire Council [2017] ICR 365 applied. Moreover, Rule 6 applied to ET proceedings but the mandatory rejection and return of the claim under Rule 12(2) meant that there were no proceedings before the ET.

It is potential misconduct for an employee to covertly record a meeting unless the most pressing of circumstances.

There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere. 78.We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change. 79.That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

In Flowers -v- East of England Ambulance Trust [2019] EWCA Civ 947 – the Court of Appeal held that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.

Employment Law covers many different aspects of employer responsibilities and employee rights, including contracts of employment, hours of work, Statutory Sick Pay and dismissal. Your employer should comply with employment law else they are at risk of employment tribunal claims. Let’s take a look at 20 key facts about employment law, that your employer should be abiding by:

  1. Your employer must register with HMRC (HM Revenue & Customs) before their first pay day when taking on their first employee. A payroll must be run and employees should be issues payslips outlining earning before and after deductions and include all detail of Tax and National Insurance. Payroll information must be reported to HMRC every time an employee is paid and they must pay any tax and National Insurance owing.
  2. An employer must ensure that all employees have the legal right to work in the UK and keep copies of all provided documents, before they start working.
  3. Within a two month period of starting work, employees are entitled to a written statement of employment terms, however if you are employed for less than one month you are not entitled to such.
  4. The terms of an employment contract can only be changed by an employer if they have reserved the right to do so or the employee has given agreement or consent. Any alterations to the contract must be agreed by both parties with written confirmation within one month of the change taking effect.
  5. A contract of employment exists once a potential employee has accepted an unconditional offer of employment, which is often before they have commenced employment
  6. A probationary period of three to six months is typical, with the period being long enough for an employer to reasonably judge whether an employee can do the job.
  7. Minimum wage applies to almost all employees, whether casual, part-time, full-time or agency workers. Workers aged 25 and over are entitled to the National Living Wage, which is £7.83 per hour. There are also four different hourly rates for National Minimum Wage, which are: £7.38 for workers aged 21 to 25, £5.90 an hour for 18 to 21-year-olds, £4.20 per hour for 16 and 17-year-olds, £3.70 for apprentices under 19 or older than 19 but in the first year of their apprenticeship.
  8. You are entitled to 5.6 weeks’ paid holiday per year as an employee (at least 28 days a year for a full time employee). Part-time employees are entitled to the same holiday, but on a pro rata basis. Holiday entitlement begins to accrue from the first day of employment and accrues even through periods of absence such as sick leave or maternity.
  9. SSP (statutory sick pay) is £92.05 per week but it isn’t uncommon for an employer to pay more than this amount. If an employer believes you are not genuinely ill or you do not comply with notification requirements, they are entitled to refuse to pay SSP.
  10. Employees must be ‘auto-enrolled’ into a workplace pension and an employer must also contribute unless an Employee specifically opts-out of the scheme.

If you believe you have received poor treatment in the workplace by your employer, or any other grounds for a claim, you will be faced with the choice of whether you should pursue an Employment Tribunal Claim or try to settle your claim, usually via a ‘settlement agreement’ contract.

Let’s break down the most important factors to consider when deciding which avenue to take.

  1. What potential claims do you have, and how likely are those claims going to be successful?
  2. What outcome are you seeking from an Employment Tribunal Claim?
  3. Is settlement an option for you, or is an Employment Tribunal Claim a point of principle?
  4. What impacts could a claim have on you in the long term?
  5. How committed are you to the process an employment tribunal claim?

What potential claims do you have and how likely are those claims going to be successful?

The first step is to determine what potential claims you may actually have based on the circumstances of your case. Have you been a victim of workplace harassment, discriminated against, victimised or unfairly dismissed?

The nature of claims you choose to pursue will of course have a significant impact on your chances of success and the value of any Employment Tribunal Claim. You will also need sufficient evidence to reinforce the particular claim(s).

What outcome are you seeking from the Employment Tribunal Claim?

Generally speaking, if you are only pursuing an Employment Tribunal Claim to seek compensation (a financial payment),  it is more likely that you will be able to settle your claim. If you are looking for another form of remedy, however, then you might have to seek this through a successful claim in the Employment Tribunal (as it is normally difficult to persuade an employer to re-engage you through a settlement agreement).

Is settlement an option for you or is the Employment Tribunal Claim a point of principle?

There is very little point in entering into a settlement agreement negotiation if you aren’t interested in a settlement. If you are strongly set on not settling from the get-go, then your time and effort are best focused on preparing your Employment Tribunal claim.

On the other hand, if you are open to settlement, then it is best to approach the other party at an early stage to negotiate and agree upon the terms of the settlement.

What impacts could a claim have on you in the long term?

The public nature of an Employment Tribunal should be considered as early as possible. All Employment Tribunal judgements are now published online and the parties to the litigation will therefore want to think carefully about what impact any publicity could have on their careers or business.

How committed are you to the process of the employment tribunal claim?

The process of an employment tribunal claim can be stressful and daunting. However, using a no win no fee employment solicitor like ourselves, your stress can be alleviated as we guide you through the entire process from initial assessment to making a claim.

A whopping £390,000+ worth of employment tribunal claims went entirely unpaid last year following the employers in question being placed in administration or being dissolved or liquidated. Experts have stated that these figures may indicate the continued struggle with ‘phoenixing’ businesses avoiding tribunal debts.

It was revealed, thanks to figures from the Department for Business, Energy and Industrial Strategy (BEIS) by People Management under a freedom of information (FOI) request, that 56 awards (worth a total of £394,505) were unpaid due to insolvency in 2017. This figure was broken down further, bringing to light that of the 56 unpaid awards two (worth £20,695) were unpaid due to administration, twenty six awards (worth £87,544) went unpaid due to dissolution and twenty eight awards (worth £286,267) were unpaid because of liquidation.

A company is placed in administration as a means of attempting to save it from insolvency. This involves control being handed over to an administrator, who will attempt to pay off, or reach a deal with, as many creditors as possible, as to reduce the company’s debts.

A company is liquidated when, as a means to pay off debts, its assets are sold off. This usually occurs after administration is unsuccessful. Finally, a company is dossolved once it is struck off the Companies House register.

The particular companies in question were not revealed, however the figures suggest that there is a continued issue of ‘phoenixing’, the unscrupulous practice of company owners avoiding tribunal awards or other penalties by making their business insolvent only to set up a very similar, new company afterwards.

Croner associate director, Paul Holcroft stated ““In the current climate, where we hear of town centres being depleted of their shops and pubs at an alarming rate, there will be very many genuine insolvency situations which mean tribunal awards go unpaid, however, with the possibility that ‘phoenixing’ is contributing to that number, employers may well be intentionally circumventing the system.”

“Without detailed analysis, it is difficult to tell which are genuine insolvencies and which aren’t, but anecdotal evidence from claimants has suggested that many insolvent ex-employers are now trading again.”

It’s clear that phoenixing is a common problem that continues to grow. However, the Taylor Review on Modern Working Practices, which was published in July 2017, called for the government to take further action against companies which dodged paying tribunal awards, and to establish a “naming-and-shaming” system for those who did not pay awards within a reasonable time period.

As stated on gov.uk, UK law allows directors, owners and employees of insolvent companies to set up brand new companies and carry on a similar business as long as the individuals involved aren’t personally bankrupt or disqualified from acting in the management of a limited company.

Last week a 98 page White Paper was released that outlines the UK Government’s suggestion for the future relationship between the UK and EU. Also, the post-Brexit status of the UK’s employment legislation derived from European Union law appears to be no longer in doubt. The document indicates that there tends to be no intention to repeal or amend equality or employment law, including a commitment to the “non-regression” of labour standards. This “Brexit Blueprint” also states that the European Court of Justice (ECJ) won’t have any further sway over the UK’s legal decisions, therefore bringing accountability of UK laws back to the UK.

The paper states that “existing workers’ rights enjoyed under EU law will continue to be available in UK law at the day of the withdrawal”, referring to the United Kingdom’s plan for their relationship with the EU in the future by suggesting that it will commit to a “non-regression of labour standards”. Therefore any UK employment laws which are based on EU law will remain unchanged after Brexit.

The blueprint offers a new framework where EU workers who are previously established can apply for ‘settled status’ and remain in the UK. Any Irish workers can remain in the UK indefinitely under ‘special status’ – Irish and UK citizens alike will be able to freely move between the UK and Ireland (the Common Travel Area). However, without an agreement in place, EU and UK workers will no longer be able to freely move between each other’s countries without certain restrictions.

There has been an indication that there will be a commitment to a “mobility network” so that EU and UK citizens can travel between their countries to work and study. However

Whilst the white paper supports the notion of there being ‘no automatic right’ to work in the UK, it does suggest that possible ‘reciprocal arrangements’ could take place that would mean businesses can relocate “talented staff” in particular situations.

In De Mota v ADR Network and anor, the EAT has held that an employment judge erred in rejecting a claim on the basis that the early conciliation (EC) certificate named two respondents. Although rule 4 of the Schedule to the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 SI 2014/254 (the EC Rules) requires a prospective claimant to present a separate EC form in respect of each respondent when contacting Acas, it does not apply to the EC certificate itself, and there is no rule that renders unlawful a certificate that names two respondents.

DM worked as an HGV driver for the Co-Operative Group Ltd (CG Ltd) between 2012 and 2015. He sought to claim unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and notice pay. His case was that he was employed by, or contracted to work for, ADR, and that ADR assigned him to work for CG Ltd. ADR and CG Ltd disputed this, saying that DM had set up his own company providing his services to ADR, and that ADR provided his services to CG Ltd. DM completed an EC form online. The information provided to online applicants states, in accordance with rule 4 of the EC Rules, that in order to make a claim against more than one respondent the claimant must complete a separate form for each one. However, DM completed just one form, putting ‘ADR Network and The Co-operative Group’ in the box for the respondent’s name. He gave an address which is both the depot of CG Ltd and a business address of ADR. Despite the error, Acas issued an EC certificate, which identified the ‘prospective respondent’ as ‘ADR Network and The Co-operative Group’. DM went on to present his claim to an employment tribunal, naming ADR and CG Ltd as two separate respondents.

An employment judge rejected DM’s claim for non-compliance with the EC Rules. He ruled that the form that DM had submitted to Acas named neither of the respondents but rather a non-existent entity whose name was the conjunction of the names of both respondents. He noted that rule 4 renders it necessary to submit separate forms in respect of separate respondents. He therefore concluded that DM had failed to provide the required information in the prescribed manner and so the tribunal was deprived of jurisdiction by S.18A of the Employment Tribunals Act 1996. DM appealed to the EAT.

The EAT allowed the appeal. His Honour Judge David Richardson, sitting along, noted that, following the EAT’s approach in cases such as Mist v Derby Community Services NHS Trust (Brief 1040) and Drake International Systems Ltd and ors v Blue Arrow Ltd (Brief 1040), it is clear that the purpose of the EC provisions is limited – it is not to require or enforce conciliation, it is simply to build in a structured opportunity for conciliation to be considered. Furthermore, it is no part of the provisions to encourage satellite litigation. HHJ David Richardson pointed out that S.18A ETA, which sets out how the tribunal’s jurisdiction depends on compliance with the EC provisions, focuses upon the existence of an EC certificate. In his view, Parliament did not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the employment tribunal. For one thing, as was pointed out in Mist, if the prospective claimant does not provide the prescribed information in the prescribed manner, the EC Rules make it plain that Acas is not bound to reject the claim. For another, if it were open to the parties or the tribunal to go behind the certificate, it would also be open to them to challenge Acas’s conduct of the conciliation procedure. Thus, the employment judge erred in law in going behind the certificate and finding that DM failed to provide the prescribed information in the prescribed form to Acas.

HHJ David Richardson went on to hold that the employment judge was wrong to rule, in effect, that Acas had issued an unlawful certificate. Rule 4, which requires individual respondents to be named on separate forms, does not apply to the EC certificate, and there is no similar mandatory requirement elsewhere in the EC Rules. Nor should such a requirement be implied, especially where the effect would be to bar access to the legal system for a litigant based on a technicality. It may be that the issuing of a single certificate was an error on Acas’s part but that is not the same as saying that it was an unlawful certificate. The appeal would therefore be allowed and the claim remitted to the employment tribunal for proceedings to continue.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0305_16_1309.html