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Dismissal for refusing vaccination found to be fair

In the recent case of Allette v Scarsdale Grange Nursing Home, an employment tribunal found that the summary dismissal of a care assistant working in a nursing home who refused to be vaccinated, was fair. The wider relevance of this case (beyond those working with the vulnerable) may be limited; the tribunal made clear that this was not a general indication that dismissal for refusing to be vaccinated will be fair in other cases.

The requirement by Scarsdale Grange Nursing Home for staff to be vaccinated was made in early 2021. This was several months prior to the government introducing legislation requiring care home workers to be vaccinated, unless exempt. The decision was taken against the backdrop of a recent outbreak at the care home, and several residents’ deaths.

The employer here was seeking to protect the health and safety of staff, visitors, and residents during the pandemic. An unvaccinated member of staff in these circumstances would pose a significant risk to others and there were no less draconian means of achieving this aim. Additionally, the Nursing Homes’ insurers had stated they would not provide public liability insurance for COVID-19 related risks after March 2021, so the employer faced the risk of liability if unvaccinated staff was found to have passed the virus on to a resident or visitor.

Ms. Allette had originally stated that she did not want the vaccine because she did not think it was safe. She also thought she was immune, having recently had Covid-19. However, the information available to the employer at the time was that it was possible to catch the virus twice and the vaccination reduced both the risk of this and transmission. At the subsequent disciplinary hearing, she claimed her refusal was based on religious beliefs.

The tribunal found the refusal was due to scepticism as opposed to religious beliefs (it found that, had this been the real reason, she would have raised it earlier). Refusing to comply amounted to gross misconduct in these circumstances, and her dismissal was fair.

As stated above, this decision arises out of the risks posed by the virus to the vulnerable residents in the care home. The high level of risk, and change in insurance status, justified the employer taking draconian measures and is likely to be limited in application to similar situations involving the most vulnerable in society.

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