The first vaccination refusal case or anti-vaxxer case was heard in Ms C Allette v Scarsdale Grange Nursing Home Limited in the Leeds Employment Tribunals (ET) in November 2021 with a judgment recently published.
Ms Allette, a care assistant, brought a claim following her summary dismissal in January 2021 after she repeatedly refused to be vaccinated against COVID-19.
The ET determined that, having regard to the circumstances of the case, the only provision of the European Convention of Human Rights (ECHR) which might have relevance to the case was Article 8, which protects the right to respect for one's private and family life.
The ET had to determine whether:
interfering with the Convention rights of the employee was justified. Then, if there was found to be such a justification, was the dismissal operated fairly in accordance with the provisions of the Employment Rights Act 1996;
the employee’s reasons for refusing to be vaccinated were legitimate, after taking into consideration that the employer was acting in such a way as it that would amount to interference in the claimant’s private life;
in case of unfair dismissal, a blameworthy conduct on the part of the claimant would have contributed to the dismissal;
the claimant committed gross misconduct which might have justified her summary dismissal, and,
she was, otherwise, entitled to a compensation for a wrongful dismissal.
In the unfair dismissal claim, the ET found that the main reason why the employer dismissed the claimant was because, by refusing to take the vaccine, she unreasonably decided not to follow a legitimate management instruction.
The ET found the care assistant frequently referred in conversations and in disciplinary hearings with the respondent to reasons for refusing the vaccination that were false and unsubstantiated from the scientific point of view, and this behaviour had led to a loss of trust. These findings contributed to the decision to dismiss the claimant.
It was found that the claimant’s refusal to follow the instruction of the employer as gross insubordination to follow instructions that were considered legitimate for the protection of the health of the residents of the care home. However, the tribunal pointed out that the refusal of vaccination in another case on different facts might not amount to gross misconduct.
Article 8 ECHR was taken into consideration and applied according to section 6 of the Human Rights Act 1998, even though the claim was as between two private parties. The ET found that it was itself as a ‘public authority’ for the purpose of applying section 6.
The ET referred to X v Y in reaffirming that in case of a dismissal of an applicant in ambits where there was interference with the right to respect for private life, then the ET might consider whether there was justification for the specific interference.
The ET considered the respondent’s decision to make the vaccine mandatory as proportionate and, moreover, there was no disproportionality in the interference with the care assistant’s Article 8 rights. Refusing the vaccination was an unreasonable departure from a managerial instruction and a repudiatory breach of her contract of employment that justified the summary dismissal.
This will clearly be the first of many such cases, and whilst it is not a binding decision, nonetheless it is a useful guide to understanding how Employment Tribunals are likely to make findings in such cases.
