Unfair Dismissal

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. 

Health and Safety “Detriments” under S 44 ERA are now extended to workers as well as employees.

New Regulations, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021. extend the protection afforded to employees by S44 ERA 96 to workers also.

The extension to workers applies to any detriments taking place on or after 31 May 2021.

Link to Legislation

In this case, Ms Gyftaki (The Claimant) had run out of annual leave. After applying for additional days it was unclear as to whether or not this had been granted by UHA. It was only until late on the evening before she was set to travel her annual leave got refused by the company. Due to the late notice, she travelled regardless.

The decision to travel resulted in a suspension set by her employer. It was implied that the suspension was due to term of trust and confidence. Ms Gyftaki responded by resigning and as a result was constructively dismissed.

In addition to denying constructive dismissal, UHA stated: “Save as expressly admitted, all the Claimant’s claims are denied in their entirety”.

Read the full constructive dismissal case between Ms Gyftaki and UHA