Covid – can an employee refuse to be vaccinated?

31 May 2022

A question frequently asked over the last few months (rapidly becoming years now!) is whether an employer can fairly dismiss an employee for refusing to be vaccinated against Covid-19? That was the issue facing the tribunal in the case of Allette v Scarsdale Grange Nursing Home Ltd (1803699/21). Although only a first instance decision, the case provides a useful reminder of the principles involved.

In this case, vaccination of staff working in a care home had been made mandatory by the employer. The claimant refused to have the vaccine because she thought that it wasn’t safe. She was invited to a disciplinary hearing on a charge of failing to follow a reasonable management instruction, and dismissed for gross misconduct.

Referring to the Court of Appeal analysis in X v Y [2004] IRLR 625, with regard to the relevance of Article 8 in unfair dismissal cases, the tribunal readily accepted that the claimant’s Article 8 rights were engaged. As a result, any interference with her rights had to be justified as a proportionate means of achieving a legitimate aim within the overall context of s.98(4) and the “range of reasonable responses” test. However, the Article 8 rights of the residents of the care home and the staff working there also had to be taken into account.

In weighing up these competing rights, the tribunal considered that the risk posed by an unvaccinated person working in the home would pose a significant and unjustified interference with the rights of others. Furthermore, no less draconian alternative measures (such as finding an alternative posting for the claimant) were available. Another factor taken into account by the tribunal was the fact that it did not believe that the claimant’s refusal to be vaccinated was connected with her Rastafarian beliefs, as she had attempted to argue (for the first time) at her disciplinary hearing.

In all the circumstances, the judge decided that the decision to dismiss her was fair.

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