Can an Individual be Dismissed for Refusing the Vaccine?

Business Insights
09/03/2022

A recent Judgment has handed us the clearest indication yet as to whether an individual can be dismissed for refusing the covid-19 vaccine.


The Facts (Allette -v- Scarsdale Grange Nursing Home Limited)

Ms Allette had been working as a care assistant at Scarsdale Grange nursing home since late 2007. In December 2020, Scarsdale was hit with a covid-19 outbreak which Ms Allette contracted and which ultimately resulted in a number of residents’ deaths. Scarsdale arranged for all of its staff and residents to receive the covid-19 vaccine in January 2021.


The day before her jab, Ms Allette called one of Scarsdale’s directors to discuss the vaccination. It was at this point that Ms Allette discovered that the vaccination was being made mandatory by Scarsdale. Ms Allette explained that she was refusing the vaccine because she didn’t trust it and she felt it hadn’t been properly tested. A disciplinary hearing followed in which one of Scarsdale’s directors explained to Ms Allette that the home would lose its public liability insurance cover if an unvaccinated employee was found to have passed on covid-19.


Following the disciplinary hearing, Ms Allette was dismissed from her role for having failed to follow a reasonable management instruction to get vaccinated. She brought an Employment Tribunal claim for unfair and wrongful dismissal, which the Tribunal rejected.


What did the Tribunal decide?

  • Did Scarsdale breach the Ms Allette’s human rights?

No, Scarsdale’s interference with Ms Allette’s private life by insisting that she get vaccinated was justified here, because Scarsdale were aiming to protect the health and safety of all residents, staff and visitors, and were also concerned about losing their insurance cover.


  • Did Scarsdale act reasonably?

Yes. Scarsdale’s director had referred to the Government and Public Health advice throughout the disciplinary process, and the Claimant’s vaccine scepticism was not a reasonable excuse for failing to follow Scarsdale’s management instruction to get vaccinated.


What did we learn from this decision?

It’s important to stress that this decision was guided by the fact that Ms Allette worked as a care assistant, and her refusal to receive the vaccine presented a heightened risk to those she worked with and the vulnerable residents she cared for.


While many employers in other sectors and industries may see this decision as justification to impose mandatory vaccines on their employees, taking such a decision is not without significant risk.


Ultimately, each case will be considered on its own facts. In our view, employers outside of the health / care sectors will be hard pressed to argue that interfering with their employees’ private lives by enforcing mandatory vaccination is proportionate when they are not providing care to a particularly vulnerable section of society.


If you need any legal advice about the covid-19 vaccine, get in touch with a member of our employment team on 029 2082 9100 for an initial free, no obligation chat.


Visit https://www.darwingray.com/