Social Care HR: Allette V Scarsdale Nursing Home (Contractual Vaccination Policy).
Given last week’s announcement RE: vaccination as a Condition of Deployment being potentially removed subject to consultation and parliamentary approval, this week’s Social Care HR article looks at the impact of contractual requirements for vaccination and whether dismissal in these circumstances is considered fair.
Luckily, this week the Social Care HR team are using a judgement for the basis of this article, so at least there may not be a U-Turn on this article announced the next day.
This week we are looking at the recent case of Allette V Scarsdale Nursing Home, which is extremely interesting for Social Care HR as if as expected, the consultation means that providers cannot rely on the potentially fair reason of statutory illegality/breach of a statutory requirement then they may wish to consider the approach taken by Scarsdale, and this provides some guidance on the matter. It should be noted that this is an Employment Tribunal Ruling and therefore is not legally binding authority.
Scarsdale (the respondent) had introduced a contractual vaccination policy to protect its staff, visitors, and residents.
The home’s insurers had made it a requirement of its insurance policy to have such a policy.
Therefore, the respondent considered this a reasonable management instruction and required all employees to be vaccinated. Otherwise, this would be considered gross misconduct.
The claimant refused the vaccine because she had a deep distrust and believed it was a government conspiracy. Based on internet searches, she had come to the belief that it had not been adequately tested and that its safety was not guaranteed. The claimant later claimed that this was due to her Rastafarian beliefs in a disciplinary hearing.
The employment tribunal found that the dismissal was reasonable in all circumstances. While the claimant had concerns relating to the vaccine, this belief was from unidentified sources on the internet.
The Tribunal found that as the Rastafarian Beliefs were not raised until the disciplinary hearing that this was disingenuous, allowing the claimant to accuse the home of being discriminatory.
This case does raise a few critical notes for care providers. With the VCOD Consultations ongoing providing lots of uncertainty within the sector and insurance clauses such as these likely to be expected, it is imperative that although in this case on these particular facts the claimant was not unfairly dismissed that employers take competent, qualified HR Advice, before engaging on this process.
Contractual vaccination requirements handled incorrectly run the risk of unfair dismissal and discrimination claims if they are not handled correctly.
Especially with employers potentially not having vaccination as a condition of deployment to rely upon any longer should they be looking to ensure their workforce is fully vaccinated.
Any employer wishing to implement such a policy, then Sapphire HR is expected to practice HR within the social care sector and is happy to advise on managing this process compliantly.
It is also worth noting that the Government intends, if the legal requirement is removed, to update regulatory guidance that care sector employers need to consider regarding the deployment of workers and their vaccine status, which may have an impact on employers.
Employers should, at this stage, be writing to their employees and ensuring that they have as the very minimum communicated the government announcement and that they are currently looking to pause their own internal procedures subject to the outcome of the consultation. However, make clear that at this early stage that although speculation claims the regulations may be removed, we simply do not know at this point whether these will be removed and what guidance may replace them.
As always, we’ll break down any changes/developments as they happen.