Ms C Allette v Scarsdale Grange Nursing Home Limited — 2022

Ms C Allette worked as a care assistant at Scarsdale Grange Nursing Home from 3 December 2007 until her summary dismissal on 1 February 2021. After a Covid-19 outbreak in December 2020, the respondent decided that staff providing close personal care to vulnerable residents should be vaccinated. The claimant did not pursue a discrimination complaint, and the tribunal addressed unfair dismissal, wrongful dismissal and the Article 8/HRA issues raised within the unfair dismissal claim.

The tribunal preferred Mr McDonagh's contemporaneous attendance note of the 12 January 2021 telephone call and found that the claimant said she did not trust the vaccine's safety, had read internet stories saying it was unsafe, and believed there was a conspiracy. It did not accept that religious or Rastafarian beliefs formed part of her actual reason for refusing the vaccine, because those reasons were not mentioned in that call or in the later appeal. The tribunal also found that she had less than 24 hours to consider the disciplinary consequences before the scheduled vaccination.

Applying Article 8 ECHR and section 98(4) ERA 1996, read compatibly under section 3 HRA 1998, the tribunal held that the respondent had legitimate aims in protecting residents, staff and visitors and in dealing with insurance concerns. It found that the vaccination requirement was necessary and proportionate in the circumstances, and that dismissal for refusing to comply was fair. The unfair dismissal complaint was therefore dismissed.

On wrongful dismissal, the tribunal found that the claimant's refusal to follow the instruction to be vaccinated was, in the specific circumstances of the case, gross misconduct and a repudiatory breach of contract. It held that the respondent was entitled to summarily dismiss her without notice, so the wrongful dismissal complaint was also dismissed. The appeal on 24 February 2021, decided by Mrs McDonagh and upheld on 10 March 2021, did not alter that outcome.