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Vaccine “refusenik” loses unfair dismissal tribunal case

Mandatory vaccination of staff who provide close personal care to vulnerable residents “was a reasonable management instruction” that correctly resulted in dismissal of a carer, an employment tribunal has decided.

The claim for unfair dismissal and wrongful dismissal was made by Ms C Allette, widely reported as Cheeryn Allette, who worked as a care assistant at Scarsdale Grange Nursing Home, Sheffield.

The claimant was dismissed following her refusal to be vaccinated against COVID-19 in January 2021 – which precedes implementation of the NHS England Vaccination as a Condition of Deployment (VOCD) policy.

The tribunal agreed that the home – run by owner-managers Mr Greg McDonagh and Mrs Tamara McDonagh – did not have in place any contractual terms requiring the claimant to have the COVID-19 or any other vaccine.

However, the tribunal’s presiding judge, Judge Bright, concluded that given the COVID-19 pandemic at the time, the dreadful consequences of a recent outbreak of the infection at the home, and the advice from Public Health England and medicines regulator the MHRA with regard to the virus and vaccination, the decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction.

Judge Bright added that he was not convinced that the claimant’s actions, in relying on unidentified Internet sources and believing that there was a conspiracy about vaccination, constituted a reasonable refusal of the management instruction to have the vaccine. He also dismissed Ms Allette’s assertion that her refusal to be vaccinated was based in religious beliefs.

Disciplinary policy at the home lists “gross insubordination/refusal to carry out legitimate instructions” and “a serious or wilful breach of the Unsatisfactory Conduct and Misconduct Rules” as examples of gross misconduct. The Unsatisfactory Conduct and Misconduct Rules state for employees that “No action is to be taken by you, which could threaten the health or safety of yourself, other employees, residents or members of the public”.

The judge concluded that the claimant’s actions in refusing to follow Mr McDonagh’s instruction to have the COVID-19 vaccine constituted, among other things, a serious breach of these rules and constituted gross misconduct.   

The judge also noted that a second legitimate reason for mandatory vaccination policy at the home was the owners’ concern about the withdrawal of insurance cover and that the claimant’s status as the only unvaccinated staff member (and therefore the most likely vector for infection) might increase the likelihood or success of claims against the home.

It was documented that the home was unable to provide an alternative position for the claimant which could avoid her coming into contact
with others.

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