The decision to dismiss an employee, on any grounds, should always be carefully considered, to ensure it is deemed fair and meets current employment law regarding an employee’s rights.
In the case of dismissal due to the employee’s refusal to vaccinate against COVID-19, Michael Shroot, chief executive officer at Woodcocks Haworth & Nuttall and a solicitor specialising in employment law, refers to a recent case to explain that, under certain circumstances, this is deemed to be fair.
The case of Allette v Scarsdale Grange Nursing Home Limited
In the recent case of Allette v Scarsdale Grange Nursing Home Limited, the Leeds Employment Tribunal confirmed in their judgment on January 11, 2022 that a care assistant working in a nursing home providing residential care for dementia sufferers, was fairly dismissed, after failing to follow a reasonable management instruction to be vaccinated against COVID-19.
In December 2020, the roll-out of the COVID-19 vaccine to nursing and care home residents and staff was due to begin. However, this particular care home was hit with an outbreak in which 33 staff, including the claimant, were infected. As a result, 22 residents were also infected and there were several deaths.
The tribunal accepted that in this case, the employer of the care home had a primary legitimate aim to protect the health of staff, residents and visitors to the home. While the care home employee, the ‘claimant’ was sceptical and had a genuine fear of the vaccine, under the circumstances this was an unreasonable approach to take as the employee had no medical authority or clinical basis for not receiving the vaccine.
This is balanced against a more pressing social need to reduce the chance of the care home residents (being some of the population’s most vulnerable people) from catching COVID-19 and risking serious illness or death.
The tribunal also accepted a second legitimate claim from the care home employer regarding a concern about the withdrawal of insurance cover. The claimant’s status (as the only unvaccinated staff member at the care home) may increase the likelihood and/or success of claims against the care home.
The dismissal was found to be fair because the consequence of any increased risk of COVID-19 was potentially very serious. The legal and moral obligation of the small employer to protect vulnerable residents, especially taking into account the state of the COVID-19 pandemic in early 2021, the history of outbreaks in nursing homes during 2020 and the recent outbreak at the care home itself, were all evidence of the pressing social need to reduce the risk to residents.
The tribunal also undertook a very careful balancing exercise as to whether the employer’s aims could have been achieved through less draconian means. However, considering the claimant’s unreasonable excuses for refusing the vaccine and refusal to answer questions on the subject nor acknowledging the risk posed by not being vaccinated; coupled with the difficult position presented by the imminent withdrawal of insurance cover for the care home; the tribunal supported the employer’s decision to dismiss the employee.
Each case is different, seek specialist legal advice
The judge made it clear that this case “is based entirely on the facts of the case and cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair”. This point of clarity which is covered in paragraph 82 of the Employment Tribunal judgment, is a vital piece of analysis.
Each employment tribunal case is different. When you look to dismiss an employee for refusing to take a vaccine, this does not necessarily mean that the employee will be fairly dismissed.
It really is a judgment call made through ascertaining and analysing all the facts of the case and applying the latest case-law along with the interpretation given to the European Convention on Human Rights and the Employment Rights Act 1996.
It is therefore essential that before you start the procedure for dismissing an employee in these circumstances, specialist legal advice is taken from a solicitor.
Further and more importantly, if you are facing an employment tribunal claim, then again seek legal advice when defending the claim at the earliest point to ensure you have the best possible defence to put forward from the outset.
Michael Shroot is WHN’s chief executive officer and head of the firm’s employment law service. Michael has specific expertise in employment law and contract disputes. He is a member of the Employment Lawyers Association.
If you need help on such a matter, please contact Michael on 0161 761 8087 or by email michael.shroot@whnsolicitors.co.uk
