We have had a lot of enquiries from care home workers about the mandatory Covid vaccination legislation brought into law by the government last autumn and being dismissed.
A recent tribunal case might answer some questions that you may have around mandatory vaccination, exemption and more.
Paul Burton takes a look at this case…
Can an employee be dismissed for refusing the vaccine?
In one of the first cases to reach the employment tribunal (ET) on the point, Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held a dismissal was fair when Ms Allette refused to have the vaccination.
This was despite the fact it was before the legislation was introduced, with Ms Allette being dismissed in January 2021.
Can an employee be dismissed for vaccine refusal if they are not medically exempt?
The ET did accept Ms Allette had a genuine fear of the vaccination, but that the requirement for it was a reasonable management instruction and she had no medical exemption not to have it.
As she provided residential care to dementia suffers and there had been an outbreak of Covid in the home, the condition the employer imposed to have the vaccination was justified.
Vaccine fears and unfair dismissal
Ms Allette stated she did not trust the vaccine’s safety and that it had been rushed into circulation without thoroughly being tested.
She said there was no guarantee it was safe and she admitted she had read about government conspiracy theories.
Read on to find the tribunal’s verdict, as well as Paul’s comment on this case.
A religious objection?
The employer carried out a disciplinary hearing with her and she suddenly raised a religious objection based on Rastafarianism.
She had never mentioned she practised Rastafarianism before and the employer was also told by their insurer that they would remove cover from March 2021 if staff remained unvaccinated.
Had the claimant provided a suitable reason to refuse the vaccine?
The employer decided, on balance, that Ms Allette had not provided a suitable reason for refusing the vaccine and that she would pose a significant risk to residents.
She was therefore dismissed for refusing the instruction to have the vaccination and she brought an unfair dismissal claim to the ET.
What did the employment tribunal find?
The ET rejected Ms Allette’s claim, also considering whether her human right to respect for private life had been breached.
They decided it had not as the employer had the legitimate aim of protecting the health of other staff, residents and visitors as well as the financial risk of not being insured.
Ms Allette also had no medical or clinical authority for her fears and the employer was reasonable to reject her sudden Rastafarianism objection.
She had only raised it very late, at the disciplinary hearing, having given other reasons for refusing the vaccination before then.
The dismissal was therefore in the band of reasonable responses and hence fair.
A specialist Employment Solicitor’s View
However, they will need to show that it is reasonable to do so given the factual circumstances. This will include the type of work their employees do, the risk to others as time goes on, and the consideration of employee’s objections.
In this case the employer had the evidence to show they had balanced all the considerations before deciding to dismiss the employee.
Unless it is in accordance with a specific piece of legislation (and we have heard the government is considering not introducing the mandatory requirement in the NHS now), we would always recommend taking legal advice before implement such a policy.”