Ms S Graham v Ascot Care Ltd — 2023

Ms S Graham worked for Ascot Care Ltd as a senior care assistant in a care home. The case arose from the 2021 regulations requiring care-home workers to be vaccinated against COVID-19 or to provide evidence of medical exemption, including temporary self-certification. The tribunal found that the claimant knew what was required of her from meetings, posters, written communications, the respondent's policy and the grievance process, but she did not complete the self-certification form used by the respondent and instead sent a certificate issued by her union.

The tribunal held that the dismissal was for some other substantial reason. It accepted the respondent's evidence that it could not lawfully allow the claimant to work in the care home while she remained non-compliant with the vaccination/exemption requirements, and that adopting the government self-certification form in its policy was reasonable. It found that by the end of the grievance process the claimant had made clear she would not provide the form required by the respondent, so holding a separate disciplinary hearing would have been futile. The tribunal also found that the appeal hearing gave her a further opportunity to return to work and comply, but she maintained her refusal. The tribunal referred to Polkey and concluded that, even if there had been a procedural defect, dismissal would have been fair in any event; it also said any contribution would have been 100% if relevant.

The discrimination claim based on religion/philosophical belief failed. The tribunal said it was not clear what the claimant's philosophical belief was, and that the evidence did not satisfy the Grainger criteria. It found the belief advanced was, at most, an opinion or viewpoint arising from the COVID-19 pandemic, and that it had not been coherently explained or shown to concern a weighty and substantial aspect of human life in the relevant sense. In any event, the respondent was not aware during the grievance, appeal or dismissal process that the claimant relied on the belief now advanced, and the tribunal found the dismissal was instead because she would not provide the required medical exemption/self-certification documentation.