In the first case of its kind, a care assistant, who was dismissed from a Sheffield care home, has lost an employment tribunal appeal against her dismissal for refusing the Covid-19 vaccine.
The Employment Tribunal found that:
“This is a claim for unfair dismissal and wrongful dismissal arising out of the summary dismissal of the claimant, a care assistant, from her employment with the respondent, which operates a nursing home providing residential care to dementia sufferers. The claimant was dismissed following her refusal to be vaccinated against Covid-19 in January 2021.”
The respondent, Scarsdale Grange Nursing Home Limited, is a family run business, that provides residential care for dementia sufferers.
The claimant, Ms C Allette, was employed by the respondent as a Care Assistant from 3 December 2007 until her dismissal on 1 February 2021. The claimant’s role involved attending to the personal care needs of the residents at the Home.
It is not disputed that staff had previously been encouraged, but not required, to have annual flu vaccinations. It was agreed that there is nothing in the claimant’s contract of employment which expressly requires her to have vaccinations nor in the disciplinary policy concerning vaccine refusal. The tribunal accepted the claimant’s evidence that, although she clearly understood that vaccination was available and encouraged, it was not until later that she realised it was mandatory if she wanted to keep her job although, she did not want to have the vaccine because “she did not trust the vaccine was safe as it had been rushed through without being properly tested.”
The Tribunal’s judgement noted that:
“… Mr McDonagh’s principal reason for dismissing the claimant was for unreasonably refusing to follow his management instruction to have the vaccine. However, I find he lost trust and confidence in her because he believed her to have been dishonest during the disciplinary hearing and that contributed to his decision to summarily dismiss her.”
The Tribunal concluded that:
“On balance, I find that the respondent acted within the range of reasonable responses of a reasonable employer and, taking account of the claimant’s Article 8 rights, dismissal was proportionate in the circumstances. There is no denying that Mr McDonagh could have given the claimant more opportunities to change her mind, may have been able to place the claimant on unpaid or paid leave and/or could have sought further independent scientific information or material to seek to persuade her that the vaccine was safe and necessary.
“However, applying the ‘range of reasonable responses’ test, I cannot say that no reasonable employer would have acted as Mr McDonagh and Mrs McDonagh did in the particular circumstances of this case.
“I find that the claimant’s refusal to be vaccinated was an unreasonable refusal to comply with a reasonable management instruction. Her reason was her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than religious belief. I find, above, that in particular because she knew she represented a risk to others, her actions fell within the definition and examples of gross misconduct set out in the respondent’s disciplinary policy. Her refusal to be vaccinated was therefore an action which, in the circumstances of this case, amounted to a repudiatory breach of her contract of employment with the respondent. The respondent was therefore entitled to summarily dismiss her.”