Yes – in the case of Allette v Scarsdale Grange Nursing Home Ltd.

In December 2020 there was a serious outbreak of COVID-19 in the Scarsdale Grange Nursing Home which resulted in several residents, sadly, passing away. 

At this time, there was no statutory obligation on care home workers to be vaccinated. However, the nursing home made it mandatory that all employees were vaccinated. Ms Allette, the Claimant, refused to have the vaccination stating that she: 

1. did not trust the vaccine’s safety; and 
2. thought that the Government was conspiring about the vaccine. 

Disciplinary proceedings commenced. At the disciplinary hearing she stated, for the first time, that she did not want the vaccine for religious reasons based on her Rastafarianism belief. The care home did not accept this explanation as she had not mentioned this at the outset. Furthermore, if an employee was not vaccinated, then the care home’s insurers had said that they would not provide public liability insurance for COVID-related risks after March 2021. Ms Allette was dismissed without notice for refusing a reasonable management instruction to be vaccinated.  

She brought a claim for unfair dismissal and wrongful dismissal. One of her arguments was that Article 8 of the European Convention on Human Rights was engaged and the dismissal interfered with these rights. Article 8 says that everyone has the right to respect for their private and family life.

The Tribunal agreed that Article 8 was engaged and the requirement for Ms Allette to be vaccinated interfered with her right to private life. However, the Tribunal found that the care home had legitimate aims of protecting the health of staff, residents and visitors and not risking breaching its insurance policy. 

In the circumstances, particularly that Ms Allette’s primary reason for refusing the vaccine was because she thought it was unsafe but she had not presented any medical evidence or clinical basis for that belief, the Tribunal concluded that the care home’s interference with Ms Allette’s private life was proportionate. They did not believe that she had refused the vaccine for religious reasons. They rejected her claims.

Summary

This is one of the first decisions we have had in England on whether it fair to dismiss an employee who refused to have the COVID-19 vaccination. The principles provide helpful guidance on how Tribunals may approach such issues in the future. However, the decision is not binding and the Employment Judge specifically stated, in her Judgement, that the decision should not be taken to mean that dismissing an employee for refusing to have the COVID-19 vaccination will definitely be a fair dismissal. Each case is fact sensitive. 

If you are:

• an employee who has been instructed to have a vaccine as a condition of employment and wish to refuse but are concerned about the implications on your job; or
• an employer looking for advice on implementing mandatory vaccine requirements, 

please get in touch with us here at People Legal. 

We are trained and experienced in handling all matters of employment law and can provide you with the information you need.

Call us on 0800 368 8470 or arrange a chat at www.people.legal/contact for free initial advice.

Please note the information contained in this briefing is intended as a general review of the subject featured and is not a substitute for obtaining specific legal advice.