Was a care home assistant who refused to be vaccinated against COVID-19 unfairly dismissed? No, held the Employment Tribunal in Alette v Scarsdale Grange Nursing Home Limited.
The claimant was a care home assistant, employed by a family-run business that operated a nursing home providing residential care for people with dementia. In December 2020, the home experienced an outbreak of COVID-19, which resulted in 33 staff and 22 residents contracting the virus within 10 days. This also resulted in several deaths of residents and the claimant also contracted the virus.
In January 2021, the claimant was informed by the respondent that it was mandatory for her to be vaccinated against COVID-19 in order for her employment to continue. (It should be noted this was before legislation was brought into force requiring care home workers in England to have the vaccine by law).
The claimant did not wish to be vaccinated and as a result, the respondent commenced disciplinary proceedings and the claimant was suspended from work.
The tribunal held the respondent genuinely believed the claimant was guilty of misconduct
The disciplinary allegation was that the claimant had refused to follow a reasonable management instruction to have the COVID-19 vaccination. During the disciplinary hearing the claimant referred to her Rastafarianism as the reason for her refusal.
The respondent maintained its position that the claimant was required to have the vaccine and they would be unable to secure public liability insurance if any unvaccinated staff were found to have infected a resident or visitor.
The claimant was summarily dismissed on 1 February 2021 for gross misconduct. The tribunal held the respondent genuinely believed the claimant was guilty of misconduct and the respondent acted within the range of reasonable responses. Therefore, the dismissal was fair.
The tribunal was also asked to consider whether the claimant’s right to a private life, as set out in article 8 of the Human Rights Act 1998, had been infringed. Even though the tribunal found the right had been engaged – by the respondent’s instruction that the claimant must be vaccinated – the tribunal decided that any interference with that right was justified in the circumstances.
Although this is a disappointing judgment for claimants, as it is a first instance decision, the tribunal was very clear to point out that it should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair. Each case will turn on its own individual facts.
