No Jab, No Job: The First Employment Tribunal decision

With the Omicron wave of the pandemic receding, the question of whether to require employees to have a COVID vaccination, or to discipline employees who refuse a vaccination, may, for now, have faded into the background for many employers. However, as it looks as though we are going to have to learn to live with repeated waves of infection – which tend to emerge very quickly and without warning – this remains a very relevant debate.

The case of Allette v Scarsdale Grange Nursing Home Ltd was the first time an Employment Tribunal considered the fairness of dismissing an employee for refusing a vaccine. Ms Allette was a nurse in a care home. In January 2021, her employer required its employees to be vaccinated. At this stage of the pandemic there were 100,000 recorded cases, and 1,500 deaths, per day nationally.

Ms Allette refused to have the vaccine, because she felt it was unsafe. She was informed that she may face disciplinary action. Her employer also explained how the vaccine worked and the reasons why it was considered safe.

Ms Allette was subsequently invited to a disciplinary hearing where she alleged (for the first time) that she had refused the vaccine because it was against her religious beliefs as a Rastafarian. The employer decided that if Ms Allette had strong religious views about vaccination, she would have raised this earlier. Ms Allette was dismissed for gross misconduct, because she had unreasonably refused to follow a reasonable management instruction, and her refusal placed the health of others at risk.

Ms Allette brought claims for unfair and wrongful dismissal. In making her unfair dismissal claim, she alleged that the employer’s instruction that she must be vaccinated infringed her Article 8 right to private and family life under the European Convention on Human Rights, as it interfered with her physical integrity.

The Tribunal dismissed Ms Allette’s claims, finding that the employer had acted within the range of reasonable responses in deciding to dismiss her for refusing a vaccine. In support of this decision the Tribunal made several findings, including:

• There had been a very recent outbreak of COVID-19 at the care home which had killed several residents, and the infection and death rate were very high at the time.
• Ms Allette had been given clear information about vaccine safety.
• The employer had been guided by the prevailing medical advice at the time.
• Ms Allette’s refusal may have affected the employer’s ability to obtain public liability insurance.
• Ms Allette had not refused the vaccine on religious grounds but because she believed it to be unsafe.

The Tribunal also found that, whilst the employer’s mandatory vaccination policy did infringe Ms Allette’s Article 8 rights, this was justified because the care home was pursuing several legitimate aims, including protecting the heath and safety of its residents and others.

Clearly, the very particular circumstances within which Ms Allette was working were highly relevant to the Tribunal’s finding that her dismissal was fair. There were also limited opportunities for redeploying Ms Allette, owing to the size of the employer.

Employers should therefore certainly not conclude that, following this case, it will be lawful to introduce a mandatory vaccination policy, or to dismiss employees who refuse a vaccine. If staff are working in a setting where they regularly come into contact with vulnerable members of the population, at a time when the state of the pandemic justifies a high degree of caution, and the prevailing medical advice is supportive of the employer’s decision, then, as this case shows, disciplinary action may be justified in the case of a refusal to be vaccinated. However, even in these cases, employers should carefully consider all of the relevant circumstances, including whether there are any alternative measures that may mitigate the risk to others (such as redeployment or asking the employee to work from home for a time until the risk reduces), before resorting to disciplinary action.

Employers should also be mindful of the risk that a mandatory vaccination policy could be indirectly discriminatory on the basis that it may place those with particular protected characteristics – such as disability, religious belief, pregnancy, age, or race –  at a disadvantage when compared to others. By way of example, some employees may argue (as Ms Allette sought to do latterly) that their religious beliefs prevent them from having a vaccine. In addition, research shows that some ethnic groups are more vaccine hesitant than others, which may make indirect race discrimination a relevant consideration. Employers should therefore carefully consider the impact of any mandatory vaccination policy on particular groups prior to implementation. Any indirectly discriminatory impact will be justified if the  employer can demonstrate that the policy was a “proportionate means of achieving a legitimate aim”, and so  employers review the aims of the policy and how any negative impact on particular groups might be mitigated.

The bottom line is that there will be a very limited set of circumstances in which it will be lawful to dismiss employees for refusing a vaccine and so employers should approach this issue with caution.