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Tribunal: Unfair dismissal: Covid vaccination

Allette v Scarsdale Grange Nursing Home Ltd

Overview:

An employment tribunal has determined that Ms Allette was dismissed fairly from her role as a Care Assistant from a nursing home, after she refused to be vaccinated against COVID-19.

Summary:

Ms Allette had been employed as a care assistant at Scarsdale Grange Nursing Home for 14 years.

The management team from Scarsdale Grange imposed an instruction that all staff should be vaccinated against COVID-19 as part of their employment. Ms Allette refused to comply with this instruction, and was subsequently dismissed from her employment in January 2021.

Ms Allette made a claim for unfair and wrongful dismissal on the basis that they were “not well-founded.”

The tribunal considered whether the reason for dismissal was fair, whether the request unreasonably interfered with Ms Allette’s human rights, and whether Scarsdale Grange acted reasonably.

Tribunal conclusion: reason for dismissal

The judgement said “There is an implied term in every contract of employment requiring an employee to comply with reasonable management instructions.”

Therefore the tribunal accepted that Ms Allette’s actions constituted gross misconduct, saying “her refusal to be vaccinated was therefore an action which in the circumstances of this case, amounted to a repudiatory breach of her contract of employment with the respondent. The respondent was therefore entitled to summarily dismiss her.”

Tribunal conclusion: interference with human rights

The tribunal agreed that mandating the vaccine interferes with an employee’s physical integrity in a manner capable of engaging the rights under Article 8(1) of the European Convention on Human Rights (right to respect of private and family life). However in balancing Ms Allette’s rights against the rights of the residents, other staff and visitors, Ms Allette’s stance was deemed unjustified and therefore dismissal was fair.

Tribunal conclusion: the employer acting reasonably

The dismissal was considered to be proportionate in the circumstances, and Scarsdale Grange “acted within the range of reasonable responses of a reasonable employer”. However the tribunal did note that the employer could have given Ms Allette more opportunities to change her mind, spent more effort persuading her to get vaccinated, or placed her on paid/unpaid leave.

Scarsdale Grange were found to have acted upon the medical evidence that was available at the time. They were unaware that Ms Allette had already contracted COVID-19 so could not take that into account, as she had not revealed this at her disciplinary hearing. They were also unaware that Ms Allette cited religious reasons for refusing the vaccination, claiming that she was a practicing Rastafarian, as she failed to mention this during her disciplinary hearing too.