Recent Covid-19 Decisions And Employment Rights For Anti-Vaxxers

Sacha Sokhi considers two decisions which help to shed light on whether dismissals for refusing to be vaccinated or to attend the workplace due to COVID fears will be religion or belief discrimination.

While there has yet to be binding decision in either the Employment Appeal Tribunal or a higher court, this article takes a look at two recent decisions by the employment tribunal which give indicators of whether vaccination hesitancy may be considered a protected belief.

Allette v Scarsdale Grange Nursing Home Ltd [2022]

In this case, dismissal for refusal to be vaccinated was found to be fair.

Ms Allette was a care assistant in a nursing home providing residential care for dementia sufferers. At the relevant time, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 had not yet come into force and so there was no statutory obligation on care home workers to be vaccinated. However, the care home faced a risk of liability if unvaccinated staff transmitted the infection, as its insurers had advised that its public liability insurance would not cover COVID-related risks after March 2021. The care home had therefore gone so far as to make vaccination a condition of employment.

Ms Allette continued to refuse to be vaccinated and was suspended on full pay. She had initially explained to one of the care home’s directors that she did not trust the safety of the vaccine and considered that it had been rushed through. She also discussed conspiracy stories she had read about online. However, at a later disciplinary hearing, Ms Allette belatedly claimed that her refusal to be vaccinated was due to her Rastafarian belief. This was the first time that she had made this claim and therefore the employer found that she did not have a reasonable excuse not to be vaccinated. She was accordingly dismissed for gross misconduct for failing to follow a reasonable management instruction.

Interestingly, Ms Allette did not bring a religious discrimination claim at the employment tribunal and instead relied on claims of unfair dismissal and wrongful dismissal. The tribunal rejected both of these claims and found that dismissal was within the range of reasonable responses.

There was, however, discussion in the ruling around Ms Allette’s religious beliefs and human rights. Specifically, the tribunal accepted that requiring employees to be vaccinated interferes with their right to a private life under Article 8(1) of the European Convention on Human Rights. However, it found that asking staff to be vaccinated in this instance was justified and necessary. This was principally because the home had a pressing social need to reduce the risk to residents, who were among those most vulnerable to severe illness and death through catching COVID-19. The tribunal therefore had to balance Ms Allette’s rights against those of other staff and vulnerable residents. It also accepted that the withdrawal of insurance cover might increase the risk for the home if it faced any claims and reducing this risk was a legitimate aim.

The tribunal did acknowledge that the care home could have been done more to try and avoid dismissal. For example, it might have placed Ms Allette on unpaid or paid leave, provided scientific information to persuade her that the vaccines were safe and necessary and provided her with more opportunities to change her mind. Ultimately however, the tribunal acknowledged that the care home was a small employer which had moral and legal obligations to protect residents, staff and visitors alike. It was also trying to make a decision about whether to impose vaccination at a time of limited knowledge about vaccines.

X v Y [2022]

In this case, the employment tribunal held that fear of catching COVID-19 is not a protected philosophical belief within the meaning of the Equality Act 2010.

The claimant refused to return to her workplace on the grounds of health and safety and a genuine fear of catching the virus and passing it on to her partner, who was in a high-risk category. The employer did not accept that she had a reasonable belief that returning to work would put herself or her partner in serious and imminent danger and told her that she would not be paid until she returned to work.

The claimant brought a claim in the employment tribunal for discrimination on the grounds of her belief, which she stated was:

… a fear of catching COVID-19 and a need to protect herself and others.

The tribunal had to decide, as a preliminary issue, whether the claimant’s beliefs constituted a philosophical belief.

In assessing what constitutes a belief that will be protected under the Equality Act, the five criteria given in the EAT judgment in Grainger plc v Nicholson [2009] remain a good starting point:

1. The belief must be genuinely held.
2. It must be a belief and not an opinion or viewpoint based on the present state of information available.
3. It must be a belief about a weighty and substantial aspect of human life and behaviour.
4. It must attain a certain level of cogency, seriousness, cohesion and importance.
5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The employment tribunal ruled that the claimant’s belief did not meet all five of these criteria. It held that her belief met criteria 1, 4 and 5 but not criteria 2 and 3. In relation to criterion 2, the tribunal held that the claimant’s fear was:

…a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat.

Furthermore, in relation to criterion 3, her fear was not wide enough to be about a ‘weighty and substantial aspect of human life and behaviour’, as it was limited to concern for herself and her partner.

Implications

While neither case directly addresses the issue of whether vaccination hesitancy might be a protected belief, they do give some useful pointers and raise interesting considerations for employers. Whether an employee claims belief discrimination, religious discrimination or breach of their human rights, the first-tier tribunals have made it clear that the claim will be considered very much on a case-by-case basis. Reaching a decision will involve balancing the competing rights of the claimant, other members of staff and any affected customers, service users or visitors.

In the absence of any binding decision from the EAT or higher courts, X v Y will provide some assurance to employers in respect of belief discrimination claims by employees who are against vaccinations. In particular, it highlights the fact that employees must satisfy all five of the Grainger criteria to win their claim. In this case, the claimant did meet criterion 5 but anti-vaccination beliefs might well be held to be in conflict with the fundamental rights of others.

Employers will, however, need to remain vigilant to the risk of discrimination claims where the employee possesses a protected characteristic. Religious discrimination claims remain a risk as bigger employers are likely to be held to a higher standard than the care home in Allette, especially if the employee immediately makes clear they are refusing to be vaccinated because of their religion. Discrimination claims on grounds of disability (from employees who cannot be vaccinated on medical grounds), pregnancy and age (because the employee was too young at the time of their dismissal to have been offered the vaccine) are also a risk. Another important consideration is that employees could still bring automatic unfair dismissal claims on health and safety grounds if, like the claimant in X v Y, they have valid concerns about catching COVID-19.

Employers should therefore continue to ensure that their workplaces are ‘COVID-secure’ by taking all reasonable steps to protect their staff and visitors while ensuring that staff follow the latest government guidance and their own risk control measures. Employers should listen to any concerns about the workplace (or possibly the employee’s commute), explain the steps they have taken to protect staff and discuss openly what else they can do to protect the individual or alleviate their fears. Allette illustrates that the tribunals may expect an employer to carry out steps such as providing scientific information to persuade those opposed to vaccinations that they are safe and necessary. Similarly, employers should provide information to employees who are reluctant to return to show why they consider it is as safe as possible for them to attend the workplace – or let them continue working from home if this is an option and they have valid health reasons.

At the time of writing, the consultation on revoking vaccination as a condition of deployment across all health and social care settings had closed but the government had not confirmed its next steps. Should it proceed to cancel the requirement for NHS staff to be vaccinated and reverse the requirement for care home staff, this will put even more pressure on employers in those sectors, as well as others, to objectively justify dismissals for a refusal to be vaccinated. They should therefore proceed with caution and consider the lessons learned from the first-tier decisions above while we await the inevitable future binding decisions from the higher tribunals and courts.

Allette v Scarsdale Grange Nursing Home Ltd [2022] ET 1803699/2021

Grainger plc v Nicholson [2009] UKEAT/0219/09

X v Y [2022] ET 2413947/2020

A version of this article recently appeared in Employment Law Journal