A care home assistant who was dismissed from her job having refused to take a coronavirus vaccine has lost her wrongful dismissal employment tribunal claim in what is thought to be the first case of its kind.
Cheeryn Allette told management at Scarsdale Grange nursing home, Sheffield, that she did not trust the vaccine, and was concerned it was unsafe. She told managers that she thought the government was “lying about its safety”.
Scarsdale, the tribunal heard, was hit with an outbreak of Covid-19 in the days before the vaccines were due to be administered in late 2020. This resulted in 33 staff and 22 residents contracting the illness in the course of 10 days.
Around half the respondent’s staff were required to self-isolate and there were a number of deaths among the residents. The claimant was one of the staff who contracted the illness and was required to self-isolate, so was absent from the Home during the height of the outbreak. The planned vaccinations on 22 December 2020 were cancelled by reason of the outbreak.
Staff had previously been offered flu vaccinations but this was not compulsory.
On 12 January 2021, Ms Allette learned from director Greg McDonagh that there was a risk of disciplinary action if she refused to be vaccinated. The vaccine was due to be administered to staff the next day so, as the tribunal noted, the claimant had less than 24 hours to consider her position.
Ms Allette told the tribunal: “At the time, it seemed to me that the vaccine had been rushed through testing and I did not see how it was possible to guarantee its safety. I had done some research and had heard stories about it being unsafe. I am also a practising Rastafarian. It is against my Rastafarian beliefs to take any form of nonnatural medication. In addition, I had already contracted Covid resulting in me having to self-isolate when I missed some shifts at the home. I therefore believed that I was likely to already have immunity.”
Mr McDonagh was unable to persuade Ms Allette to take the vaccine despite a lengthy conversation, and a disciplinary meeting was held on 28 January 2021 over Zoom with Ms Allette assisted by a trade union rep.
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The tribunal judge accepted Mr McDonagh’s view that Ms Allette was not refusing the vaccine on the grounds of strongly held religious beliefs because she had not raised them during her discussion with him. Mr McDonagh said: “In my view, the claimant had clearly accepted that her excuse was not good enough which is why she was prepared to invent a reason which she considered more plausible.”
Mr McDonagh explained to the claimant during the meeting on 28 January 2021 that the home’s insurers had told him they would not provide public liability insurance for Covid-19 related risks after March 2021 and that, thereafter, the respondent faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.
The judge found that Mr McDonagh’s decision to make vaccination mandatory for staff was a reasonable management instruction. He noted that the claimant had relied on unidentified internet sources and conspiracies in justifying her rejection of the vaccine and so her refusal could not be construed as reasonable.
The tribunal heard that Ms Allette had worked as a care assistant at the family-run home for more than 13 years. She was dismissed for gross misconduct and her appeal — where she returned to stating that vaccine safety was her concern — was rejected.
Ms Allette was unaware that vaccinations were mandatory if she wanted to keep her job, the judge accepted. But 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. The care home was entitled to dismiss her.
Legal comment
For Richard Fox, an employment partner at Kingsley Napley, Ms Allette’s case was likely to be an influential one. He said: “This decision may indicate how future cases on the vaccination issue may be determined. Given mandatory vaccination was not a legal requirement for care workers at the time, it will be of interest to private sector employers considering the introduction of mandatory vaccine policies for their staff.
“In this case the claimant’s initial objection to vaccination seems to have been on the basis of the conspiracy theories that she had read at the time. That did not seem to be working, so she sought to object on the basis of religion or belief discrimination in that it was against her Rastafarian beliefs. But that seemingly failed too.
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“This is an early indication of what may happen when other vaccine related cases reach tribunal in a few months’ time. Extrapolating, it may be that claimants are not going to find it easy to succeed in their claims. This decision may also help fortify employers in their belief that it will be possible to introduce mandatory vaccination and defend their position if challenged in court.”
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