Facts
Scarsdale Grange is a small family run business providing residential care for dementia sufferers. The claimant was employed as a Care Assistant from 3 December 2007 until her dismissal on 1 February 2021.
In December 2020 the government announced the roll out of the Covid-19 vaccine programme to nursing home residents and health workers to help combat the particular vulnerability of that sector. Scarsdale Grange made arrangements for staff to have their first vaccine on 22 December 2020. Unfortunately the care home was hit by a Covid-19 outbreak in the days running up to the scheduled vaccination. This led to 33 staff and 22 residents contracting Covid-19 over a period of 10 days. Sadly there were a number of deaths among the residents. The claimant also contracted Covid-19 during this period and had to isolate.
The planned vaccinations had to be re-scheduled to January 2021. It is worth noting that at this stage the government had not yet legislated to make the vaccination mandatory in care homes. During a telephone conversation on 12 January 2021 (the day before the claimant was due to take her vaccination) the claimant realised that vaccination was mandatory if she wanted to keep her job. Prior to this conversation the claimant had simply understood the vaccination to be available and encouraged. During a 43 minute long telephone conversation between the claimant and one of the directors of Scarsdale Grange, Mr McDonagh, the claimant explained her reasons for refusing the vaccine. As documented in a contemporaneous attendance note, the claimant's main concerns were that she did not trust the vaccine; that it had been rushed through without proper testing; that she and her son had read stories on the internet about a government conspiracy; and that no-one could guarantee its safety.
The disciplinary hearing
The claimant was subsequently invited to a disciplinary hearing on 28 January 2021 for failing to follow a reasonable management instruction. At this point the claimant referred to her religious beliefs and Rastafarianism as the reason for her refusal to take the vaccine. The claimant asserted at one point during the disciplinary hearing that she had referenced her religious beliefs during the 12 January 2021 telephone call, before eventually conceding that she had not done so. It was accepted by the Tribunal that Mr McDonagh did not know until the disciplinary hearing that the claimant was a practising Rastafarian.
Mr McDonagh explained to the claimant during the meeting that Scarsdale Grange's insurers would not provide public liability insurance for Covid-19 related risks after March 2021 and that after that date, Scarsdale Grange faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. Mr McDonagh explained that there were similar issues with employer's liability insurance.
The dismissal
Mr McDonagh took the view that he could not make an exception for one member of staff because not all residents could be vaccinated, the vaccine was not 100% effective and visitors might be unvaccinated. Mr McDonagh also genuinely believed the claimant was being dishonest by citing religious reasons for refusing the vaccine. Following the disciplinary hearing Mr McDonagh wrote to the claimant on 1 February 2021 informing her that she was summarily dismissed for gross misconduct on the ground that she had failed to follow a reasonable management instruction to be vaccinated.
The claimant brought claims for unfair and wrongful dismissal.
The Employment Tribunal
The Tribunal rejected the claims. The Tribunal found the claimant's dismissal was fair and that Scarsdale Grange did not breach the claimant's contract of employment.
Article 8 of the European Convention on Human Rights ("ECHR") – right to respect for private life
One of the issues to be considered was whether the dismissal breached the claimant's right to respect for private life under Article 8 of the ECHRs. The Tribunal found that Scarsdale Grange had a legitimate aim for both the management instruction requiring employees to be vaccinated against Coivd-19 and the dismissal of the claimant for unreasonably refusing to comply with that instruction. It was not disputed that the key legitimate aim was to protect the health and safety of residents, staff, and visitors. A second legitimate aim of concern over withdrawal of insurance cover was also accepted.
The Tribunal found that the requirement for the staff at the care home to be vaccinated against Covid-19 corresponded to a pressing social need, which was to reduce the risk to the residents who were undoubtedly vulnerable to severe illness or death through contracting Covid-19.
Although the Tribunal did not doubt the strength and genuineness of the claimant's fear of and scepticism about the vaccine, she had no medical authority or clinical basis for refusing vaccination.
Balanced against this, Scarsdale Grange was a small employer with a legal and moral obligation to protect its vulnerable residents. The Tribunal accepted that Scarsdale Grange had to make decisions regarding the vaccination in January 2021 based on the limited state of knowledge about vaccines and the progress of the pandemic at that time. The Tribunal noted that Mr McDonagh was required to make difficult decisions and concluded that the interference with the claimant's private life was proportionate.
Reasonableness
The Tribunal found that Scarsdale Grange acted within the range of reasonable responses of a reasonable employer; taking account of the claimant's Article 8 rights, dismissal was proportionate in the circumstances. The Tribunal found that it was not outside the range of reasonable responses for an employer to conclude that an employee who was merely sceptical of the advice and did not trust the vaccine did not have a reasonable excuse for refusing to follow the management instruction to have the vaccine.
The Tribunal found that Mr McDonagh genuinely did not believe the claimant's refusal was linked to her religious beliefs, considering how late she raised this issue. The claimant's argument that she should have been referred to independent scientific sources of information to address her scepticism was rejected. Mr McDonagh did refer to advice from Public Health England ("PHE") and the government.
During the hearing Mr McDonagh was asked about the claimant's Covid-19 infection and how there would be no tangible benefit to having the vaccine as the claimant would already have antibodies from a recent infection. The Tribunal accepted Mr McDonagh's evidence that he was acting on prevailing medical evidence at the time and that it was possible to contract and transmit the virus more than once.
Comment
Employers looking for effective Covid-19 control measures for their organisation will undoubtedly be keen for their workforce to be vaccinated as soon as possible. Unfortunately workplace vaccination is not a straightforward topic and throws up a number of employment law issues, from discrimination to unfair dismissal, not forgetting the wider legal implications surrounding health and safety laws and data protection.
Although this case is only first instance and so is not legally binding, it provides a useful indication for employers, particularly care home providers and employers in healthcare and the wider social care sector. Undoubtedly more cases will follow in the coming months.
It is important to note that each case will be considered on its own facts and that disciplining or even dismissing an employee for failing to be vaccinated is not without risk, especially for employers outside of the health and social care sectors. Dismissal processes and procedures will have to be followed. As highlighted in this case, keeping a paper trail (including contemporaneous notes of key meetings) is essential.
