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Mandatory vaccination: interference with Article 8 right to privacy was justified and dismissal for refusing the be vaccinated was fair.

This week’s blog is brought to you by Laura Dawson pupil to Philip Morgan

An employment tribunal has held that the summary dismissal of a care assistant for unreasonably refusing to be vaccinated against COVID-19 was fair.

In Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 an employment tribunal held that the summary dismissal of a care assistant working in a nursing home who refused to be vaccinated against COVID-19 was not unfairly dismissed and the interference with the employee’s Article 8 right to privacy was justified.

Facts of the case

The facts of this case took place before 11th November 2021 that was before regulations came into force for all care homes to ensure all care home workers were fully vaccinated. Ms Allette was employed by Scarsdale Grange Nursing Home Ltd. The nursing home had multiple outbreaks of COVID-19 and numerous deaths of residents. Therefore, the employer had arranged for the vaccination of all staff, there was no provision in the contract of employment nor in the employer’s disciplinary policy requiring vaccination or regarding refusal of vaccination. Prior to undertaking the vaccination when informed that vaccination was mandatory Ms Allette informed her employer that she was refusing the vaccine as it was not safe and that she had already contracted COVID-19 so was already immune. At a disciplinary hearing Ms Allette referred to religious beliefs and Rastafarianism as the reason for her refusal to be vaccinated and accused her employer of discrimination. Her beliefs had not been raised with her employer prior to this time and the employer was unaware of her beliefs. The employer explained their public liability insurance would not provide liability insurance for COVID-19 related risks after March 2021 so would face risk of liability if unvaccinated staff passed on the virus to a resident or visitor and that her reasons for refusal were not justified.

On 1st February 2021 the employer summarily dismissed Ms Allette for gross misconduct on the ground that she failed to follow reasonable management instruction. Ms Allette brought claims for unfair dismissal and wrongful dismissal which the employment tribunal dismissed.

Background and the Law

The dismissal of a qualifying employee will be unfair unless:

 

  1. The employer can show that the dismissal was for a potentially fair reason, such as conduct (section 98(1) and (2), Employment Rights Act 1996 (ERA 1996)).
  2. In all the circumstances (including the employer’s size and administrative resources), the employer acted reasonably in treating that reason as a sufficient reason for dismissal (section 98(4), ERA 1996).

Employees have a duty at common law to obey the lawful and reasonable orders of the employer. A sufficiently serious failure to follow a reasonable management instruction can justify a dismissal on the grounds of conduct.

Under section 98(4) of ERA 1996, the tribunal must assess objectively whether dismissal fell within the range of reasonable responses available to the employer in the circumstances. For the purposes of this test, whether the tribunal would have dismissed the employee if it had been in the employer’s shoes is irrelevant: the tribunal must not “substitute its view” for that of the employer.

Various articles of the European Convention on Human Rights (ECHR) may have an impact on dismissal and therefore tribunals deciding unfair dismissal cases have a duty to act in accordance with those articles and interpret the domestic legislation in accordance with them (section 3, Human Rights Act 1998). Article 8 of the ECHR provides that everyone has the right to respect for private life. Justification of interference with this right involves considering whether the interference was necessary in a democratic society, the legitimateaim of the interference, and the proportionality of the interference to the legitimate aim being pursued.

The employer’s instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the employee’s physical integrity in a manner capable of engaging Article 8 of the European Convention on Human Rights (ECHR).

The tribunal found that the employer’s aims, of protecting the health and safety of the residents, staff and visitors to the care home and protecting itself against the increased likelihood of claims due to the withdrawal of insurance cover if staff members were unvaccinated, were legitimate aims.

Ms Allette as an unvaccinated staff member posed a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the home. Therefore, the employer’s requirement for Ms Allette to be vaccinated and her subsequent dismissal for unreasonably refusing vaccination was justified.

The tribunal found that it was within the range of reasonable responses for the employer to conclude that the refusal was due to scepticism of the vaccine and not due to religious beliefs, as had been raised at the disciplinary hearing. Taking the case in the context of the recent outbreak and deaths at the nursing home, and the urgency with which measures to protect the vulnerable residents needed to be put in place, Ms Allette’s refusal to comply with the employer’s instruction to be vaccinated did amount to gross misconduct and the dismissal was therefore neither unfair nor wrongful.

Comments on the case

The facts of the case took place before legislation took effect in November 2021 mandating vaccination or exemption for care home workers. If dismissal of an unvaccinated care worker were to occur now, then the care home’s legal obligation to comply with the relevant regulations may provide a fair reason for dismissal. However, the decision is still likely useful in determining whether the employer acted reasonably in circumstances. It was emphasised that while the tribunal found that Ms Allette’s refusal to comply with the instruction to be vaccinated amounted to gross misconduct on the facts of this case, it did not mean that refusing to be vaccinated amounts to gross misconduct, or even misconduct at all, in another case on different facts. It was further stressed that the finding of a fair dismissal in this case was not a general indication that dismissal for refusing to be vaccinated against COVID-19 will be fair in other cases.

The judgment is of particular interest in that it is the first domestic decision to consider the fairness of dismissing an employee for refusing to be vaccinated against COVID-19. The decision demonstrates how a tribunal will approach the argument that mandatory vaccination is an unnecessary invasion of an individual’s Article 8 right to privacy, and how the interference of that right is balanced against the rights of others, particularly those most vulnerable to the virus.

A larger employer will likely have different considerations, especially where potentially less draconian measures could be used such as redeployment, and to employers in other sectors, where there may not be a legitimate aim of protecting vulnerable persons.

It will also be necessary to fully consider the employee’s reasons for refusing vaccination to determine whether refusal is reasonable and how the employer deals with that refusal in the context of the surrounding circumstances.  What this decision suggests is that concern about vaccine safety is unlikely to be a sufficient reason for refusal in a workplace where the aim of vaccination is to protect the most vulnerable.

 

 

 

 

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