Case Law Update: Mandatory Vaccines, Dismissal & Discrimination

An employment tribunal recently ruled on a case of contractual vaccination requirement & unfair dismissal.

The tribunal had to consider whether vaccination was reasonable and dismissal as a result of this was fair. The claimants’ religious beliefs were taken into account in connection with vaccine refusal.

(N.B. The dismissal took place before the vaccine regulations were in place for care home workers in England. Therefore, only looks at contractual vaccination requirements)

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.

Employment law related to the case

Section 98 Employment Rights Act 1998 provides:

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason…for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it –

(b) relates to the conduct of the employee.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

The reasonableness test in section 98(4) requires the tribunal to determine whether the act of dismissal fell within the ‘range of reasonable responses’ available to an employer acting reasonably - British Leyland v Swift [1981].

 

 

Allette v Scarsdale Grange Nursing Home Ltd

Facts of the case

The respondent, Scarsdale Grange Nursing Home, introduced a contractual vaccination policy. Its aim was to protect the health of its staff, vulnerable residents, and visitors. It also served to comply with the company’s insurance policy.

The home’s insurers had told them that it was a condition of public liability insurance for COVID-related risks after March 2021 to have this requirement. They were told that they faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. It was therefore felt by the respondent that it was a reasonable management instruction for all employees to be fully vaccinated. As a result, failure to become vaccinated would be an act of gross misconduct.

The claimant refused the vaccine because she had deep distrust for it. She believed that it was a Government conspiracy. Based on internet searches, she had come to the belief that it had been rushed through testing and that its safety was not guaranteed.

The claimant faced a disciplinary hearing as a result of her refusal. In this meeting, she disclosed that her refusal was based on her Rastafarian beliefs. These beliefs did not allow for non-natural medicine. However, her failure to mention this until the disciplinary hearing led the employer to believe that it was disingenuous. The respondent believed that she had raised this so she could accuse the home of being discriminatory. The ET agreed.

What the employment tribunal (ET) found

The ET found that the decision to implement a vaccination policy was proportionate in the circumstances. The home had a legal and moral obligation to protect vulnerable residents. Plus, it had a need for continual insurance cover.

The ET also held that the dismissal was within the “range of reasonable responses” in the circumstances. The employee’s refusal was not reasonable. Although she was genuinely worried about the vaccine, she had no valid evidence to back this up. She relied on unidentified sources on the internet. The ET accepted that her human rights were being infringed by this requirement. However, this was justified because the employer needed to protect the safety of residents, staff and visitors in the home.

The ET agreed that her religious beliefs were raised maliciously and disingenuously. This was so she could accuse the home of being discriminatory. Therefore, this point was not directly considered in the judgement. 

 

Note for employers

This case gives organisations in the care sector confidence that they can require employees to have the vaccine, especially now that there is no longer a legal mandate for staff to be vaccinated.

However, don’t take this to mean that your businesses will be treated in the same way. This is especially true for those working outside the care sector. Firstly, this was a care home. The close contact such work involves made vaccination more likely to be reasonable. Those being cared for are likely to be medically vulnerable to serious illness or death from Covid. This is unlikely for other sectors where the same level of prolonged contact with vulnerable people is not common.

It is also worth noting that the ET commented that more could have been done by the Respondent. They could’ve placed her on paid or unpaid leave, for example. Or they could seek to provide further information to try to persuade her of the safety and necessity of the vaccine. This would’ve given her more of an opportunity to change her mind. This is particularly relevant now given the extensive resources now available on vaccination. Take this into account if you’re looking to go down this route. Moving forward, tribunals may take a stricter view on when dismissals are the last resort. It’s important to fully exhaust all alternative options.

A final point is that, as an ET case, this is not legally binding authority. In other words, courts don’t have to follow it. It will help inform further cases down the line, however. And, If a similar case reaches the Employment Appeal Tribunal (EAT), employers will be bound by the decision.

TL;DR

To protect the safety of their residents and staff, a care home introduced a mandatory vaccination policy. An employee refused to be vaccinated due to information she found on the internet. When taken to a disciplinary meeting, she claimed having the vaccine conflicted with her religious beliefs. The employee was later dismissed.

The ET found that the policy was reasonable as it protected residents and their insurance. They found the dismissal was also reasonable as her refusal of the vaccines was based on unfounded evidence. The ET didn’t consider the claim that her religious beliefs were the reason she refused the vaccine. This was because it was believed she raised them maliciously in an attempt to accuse the care home of discrimination.

This case doesn’t set a legal precedent for similar cases, but it will help inform decisions further down the line.

Expert employment tribunal insights

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