358: Is dismissing an employee for refusing COVID-19 vaccination a breach of their human rights?

Given the impact of the Government’s mandatory vaccination policy, many care homes will have been wary of the legal implications of dismissing employees for refusing vaccines.

In the first reported case on mandatory vaccination, Allette v Scarsdale Grange Nursing Home Ltd, an Employment Tribunal has ruled that the summary dismissal of an employee for refusing to be vaccinated against COVID-19 was fair. The Tribunal also held that any interference with her right to privacy under the European Convention on Human Rights (ECHR) was justified.

Although not binding on other Tribunals, this judgement provides useful guidance on how to approach the issue of vaccine refusal, which may be particularly pertinent now that the government intends to scrap mandatory vaccination. This case also highlights the range of potential legal claims which may arise where employees refuse to be vaccinated, including ECHR privacy rights, unfair dismissal, wrongful dismissal and religious discrimination.

Ms Allette was employed as a care assistant in Scarsdale Grange Nursing Home, a family-run residential home for dementia sufferers. The Home’s disciplinary policy included a rule that employees must not threaten the health and safety of themselves, other employees, residents or the public; and listed gross insubordination and refusal to carry out legitimate instructions as examples of gross misconduct. Following the government’s roll-out of its vaccination programme for care home workers, the Home arranged for all staff to be vaccinated in December 2020. However, before this could be implemented, there was a COVID-19 outbreak in the Home which resulted in around half the staff contracting the virus, including Ms Allette, and a number of deaths among residents. At this stage of the pandemic, there were 100,000 recorded cases per day and 1,500 deaths per day, leading to a new lockdown. The Home rescheduled the staff vaccinations for January 2021 on the basis that refusal without reasonable grounds could lead to disciplinary action.

Ms Allette refused the vaccine, arguing that it was not safe and that she was already immune, having recently had the virus. Following disciplinary proceedings, she was summarily dismissed for gross misconduct on the grounds that she had failed to follow a reasonable management instruction to be vaccinated; her refusal was an unreasonable risk to the health and safety of others; and she had exposed the Home to a risk of legal claims due to consequential difficulties with public and employer’s liability insurance. Ms Allette brought claims of unfair dismissal and wrongful dismissal.

The Employment Tribunal has now rejected these claims, ruling that her dismissal was neither unfair nor wrongful. Given the seriousness of the pandemic nationally in January 2021, the recent outbreak in the Home, and the advice of Public Health England that vaccination was safe, the Tribunal concluded that the decision to enforce mandatory vaccination for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. Against that background, Ms Allette’s refusal due to concerns about vaccine safety was not reasonable.

The Tribunal also held that mandatory vaccination interfered with Ms Allette’s physical integrity and therefore engaged her right to privacy under Article 8 of the ECHR. However, this was justified by the Home’s legitimate aims of protecting health and safety and guarding against the increased likelihood of claims due to withdrawal of insurance cover if any staff members were unvaccinated. In addition, Ms Allette’s unvaccinated status would also pose an unjustified interference with the Article 8 rights of other staff, residents, and visitors to the Home.

In all the circumstances, Ms Allette’s refusal to comply with a management instruction to be vaccinated amounted to gross misconduct and dismissal was within the range of reasonable responses. The Home had also followed a fair procedure. Although Ms Allette, who is a Rastafarian, tried to raise religious objections, the Tribunal did not accept that these were part of her reason for refusal since she had not raised them prior to the disciplinary proceedings.

Each mandatory vaccination case heard by the Tribunal will be specific to its own facts and will depend on the employer’s reasons for insisting on vaccination, the employee’s reasons for refusing, and whether alternatives to dismissal are available. It is important to note that, in these cases, reasonableness will be judged in the context of the state of the pandemic and scientific knowledge existing at the time of dismissal. Potential withdrawal of insurance cover may also be relevant. Here, the employer was seeking to protect vulnerable residents, the employee had no medical or clinical basis for refusing vaccination, and no alternative positions were available for her.