Contractual vaccination requirement is reasonable and dismissal fair

In the recent case of Allette v Scarsdale Grange Nursing Home, the ET had to consider whether an employee’s dismissal for her refusal to get the Covid vaccine was fair.

Scarsdale Grange Nursing Home implemented a contractual vaccination policy with the primary aim of protecting the health of its staff, vulnerable residents and visitors, and a secondary aim of not breaching its insurance policy. The home’s insurers had told them that they would not provide public liability insurance for COVID-related risks after March 2021 and that they faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. As such, they considered it a reasonable management instruction for all employees to be fully vaccinated and treated a failure to follow this instruction as an act of gross misconduct.

The employee refused the vaccine because she had deep distrust for it, believed that it was a Government conspiracy, that it had been rushed through testing and that its safety could not be guaranteed. She later tried to argue that her refusal was based on her Rastafarian beliefs, but her failure to mention this until the disciplinary hearing led to both the employer and ET agreeing that it was raised maliciously and disingenuously, so that she could accuse the Home of being discriminatory.

The tribunal found that the decision to implement a vaccination policy was proportionate in the circumstances, given the home’s legal and moral obligation to protect vulnerable residents and its need for continual insurance cover. The ET further concluded that the GM dismissal was also within the range of reasonable responses in the circumstances, in particular in light of the employee’s unreasonable reasons for refusing the vaccine (she had no medical authority or clinical basis for refusal), her refusal to answer questions about/acknowledgement of the risk she posed, the strength and finality of her refusal and the difficult position presented by the imminent withdrawal of the Home’s insurance cover.

The ET highlighted that an employee who is merely sceptical of official advice does not have a reasonable excuse for refusing to follow a management instruction to be vaccinated.

What this means for employers:

Whilst the case’s applicability moving forward may be limited in England due to the recent regulations making vaccination a condition of deployment for staff within care homes and wider health and social care settings, it’s important for those not covered by the regulations, as well as for organisations in Scotland and Wales who want to make Covid vaccination a contractual requirement.

For those who want to do so, they must satisfy all of the following:

  • Have objective justification for introducing a contractual vaccination policy
  • Follow a full and fair disciplinary process  
  • Make reasonable adjustments for those with reasonable grounds for refusing vaccination

The ET commented that more could have been done by the Respondent, for example placing the employee on paid or unpaid leave or seeking further information to try to persuade her of the safety and necessity of the vaccine, in order to provide more opportunity for her to change her mind. This will be of particular relevance given the extensive resources now available on vaccination. As such, tribunals may take a stricter view that dismissals should only be a last resort, after fully exhausting all alternative options.

It must also be noted that since this case came from the ET, the decision is not legally binding authority. However, it does provide good foundations and employers can mimic the policies and procedures followed by the respondent. It will be interesting to see whether a similar case reaches the Employment Appeal Tribunal (EAT), as employers will be bound by their decision.

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