An employment tribunal in Leeds has ruled against a care home worker who refused to be vaccinated against coronavirus.

Cheeryn Allette who had worked at the home for thirteen years until January 2021, was fairly dismissed according to the tribunal. The management had made the vaccine mandatory before it was required by law. Ms Allette had initially told the management at Scarsdale Grange nursing home in Sheffield that she did not trust the vaccine after reading internet conspiracy theories. Ms Alette had said she believed the vaccine was unsafe and that the government was lying about its safety.

Later, Ms Allette told her bosses that the vaccination went against her Rastafarian beliefs and said she was ‘likely to already have immunity’ as she had already had the virus.

Employee asked for furlough 

Alan Price, CEO of BrightHR said: “This case highlights the importance of following a full and fair procedure, as well as having sound, objective reasoning for introducing a mandatory vaccine requirement.”

The tribunal heard that the employee had told bosses they would ‘have to furlough her’ but the family-run home did not want to do this as it believed the furlough scheme was not for this purpose. It also had not planned on furloughing staff due to absences because of isolation. 

The tribunal accepted Ms Allette’s fear and scepticism was genuine but said that the requirement to be vaccinated was a reasonable management instruction, especially as the employee had no medical authority or clinical basis to refuse.

Mr Price said companies must keep a record of conversations with staff to ensure they are following protocol: “Organisations who wish to adopt a similar approach should learn from the process the respondent followed, particularly with regards to their timescales, investigation, decision process and note-keeping.

“Had they fallen short in either of these areas (e.g. had no meeting notes, unreasonable timeframes, incomplete investigation etc.), the outcome may have been substantially different. Ultimately, even where the overarching reasons for dismissal are fair, claims can still be successful where due process is not adhered to.

Mandate from insurers

Scarsdale Grange Nursing Home implemented a contractual vaccination policy with the primary aim of protecting the health of its staff, vulnerable residents and visitors, and a secondary aim of not breaching its insurance policy. 

The home’s insurers had informed them that they would not provide public liability insurance for COVID-related risks after March 2021. The insurers also said Scarsdale Grange Nursing Home faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.

Mr Price reminds us that the Employment Tribunal (ET) decision is not legally binding but said:”However, it does provide good foundations and employers can still mimic the policies and procedures followed by the respondent. It will be interesting to see whether a similar case reaches the Employment Appeal Tribunal (EAT), as employers will be bound by their decision.

“The ET did comment that more could have been done by the Respondent, for example placing the employee on paid or unpaid leave or seeking further information to try to persuade her of the safety and necessity of the vaccine, in order to provide more opportunity for her to change her mind. This will be of particular relevance given the extensive resources now available on vaccination. As such, tribunals may take a stricter view that dismissals should only be a last resort, after fully exhausting all alternative options.”