Several employers have already implemented ‘no jab, no job’ policies into their organisations with compulsory vaccinations remaining a contentious issue for many. The care sector is a particular example in which it now has to follow new regulations which require that their workers are fully vaccinated, unless they are exempt.
It is a growing topic of conversation throughout the UK – and on a global scale – following the roll-out of the vaccines. And it was especially highlighted as a result of the case of Alette v Scarsdale Grange Nursing Home Ltd. Sarah Dillon, our ESP Law director, reviews the case in more detail…
The Tribunal found, in the Alette case, that a care worker who refused to get vaccinated was fairly dismissed, despite vaccination not being mandatory in care settings at the time.
In the Alette case, the employer decided that the best way to protect their vulnerable residents was to ensure all those who met them were vaccinated. This was particularly important as social distancing is not possible in care homes due to the needs of individuals for close personal care – including washing and feeding – and the complex underlying health conditions that mean some residents, even if vaccinated themselves, are still at risk of complications if they catch Covid.
The employer in the Alette case issued a management instruction to all staff that they should be vaccinated. Mrs Alette refused and was dismissed on the grounds of gross misconduct.
The case is currently a first instance employment tribunal decision and therefore not binding but may be taken into account by future Tribunal judges. The case is, nonetheless, an important precedent for care organisations who have decided to act on the requirement of vaccines, prior to the Government making such requirements mandatory. Many other employers have acted in a similar way.
Other employers have decided to dismiss on the grounds of Some Other Substantial Reason such as:
- the need to protect vulnerable people who have underlying health conditions;
- or who cannot have vaccines themselves due to medical reasons over the employee’s continued employment;
- or consulting employees on changing their terms and conditions of employment to require vaccination as a requirement of employment, rather than gross misconduct.
These types of cases are yet to be heard by Tribunals all over the country. Due to the unique nature of the pandemic, there has been no legislation or case law to help employers decide which was the correct, or most suitable, process. Therefore, we must rely on new cases going to Tribunal.
The situation and fairness of dismissals continues to change day by day in England, with new strains emerging such as the Omicron variant found to be less severe. There may come a time – especially if future variants are even less severe – that the requirement to vaccinate in care homes is no longer necessary.
It is important for employers to continually review their health and safety policies and risk assessments to ensure they are up to date with the most recent guidance and changing national picture.
