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Fair dismissal for COVID vaccination refusal

Gateley Legal

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Issue

Many have strong feelings in respect to the extent to which COVID vaccinations should be made compulsory. Legislation has been passed requiring staff in care homes to be vaccinated and similar rules are due to come into force for NHS staff with direct patient contact in April. In the case of Allette v Scarsdale Grange Nursing Home Ltd the issue was whether the employee had been dismissed fairly for failing to comply with an instruction to be vaccinated prior to the legislation being passed. 

Facts

Following an outbreak of COVID at the residential nursing home where she worked all staff were told that they would need to be vaccinated. Ms Allette, a care assistant, objected as she did not trust the vaccine’s safety. However at a subsequent disciplinary hearing she also referred to it being contrary to her religious belief as a practising Rastafarian. That was not accepted. It was decided that she should be dismissed as she posed a health and safety risk to residents that could not be covered by insurance.

Decision 

It was held that her dismissal was fair. The employers had a legitimate aim of protecting the health of staff, residents and visitors and complying its insurance policy. Mandatory vaccination corresponded to a pressing need to reduce the risk to residents. Whilst the claimant’s concerns about the vaccine were genuine they were not reasonable in the circumstances. It was not accepted that her refusal was connected with religious belief, given the way in which she belatedly raised this point. 

Key point

It was considered that the employer had given a reasonable management instruction and the employee’s refusal to comply was grounds for dismissal as she had no good reason for refusing. The fact that a number of residents had died during outbreak has to be taken into account. Of course now that there is a statutory requirement for staff in care homes to be vaccinated the employer would be able to rely on that as a fair reason for dismissal but would still need to follow a fair procedure.

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