Employment case law update December 2021

Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

Mandatory COVID vaccination & fair dismissal

Ms C Allette v Scarsdale Grange Nursing Home Limited

This is an unfair and wrongful dismissal claim arising from the summary dismissal of the claimant, Ms C Allette. Ms Allette had worked as a care assistant at Scarsdale Grange for more than 13 years but in January 2021 was dismissed from her position for gross misconduct after refusing to be vaccinated against Covid-19.

Ms Allette refused to be vaccinated when the Scarsdale Grange nursing home in Sheffield made vaccinations mandatory for staff in early 2021, before it was enshrined in law later that year. She brought claims for unfair dismissal and wrongful dismissal against her former employer in July 2021, in what is believed to be the first case of its kind relating to refusal to take a coronavirus vaccine.

Ms Allette only mentioned her concerns about the vaccine not being safe during a phone call with the care home owner on January 12, 2021, when it became clear that she did not want the vaccine. Ms Allette was then suspended after she continued to refuse the vaccine, and invited to an online disciplinary meeting on January 28th, which was chaired by the care home owner and attended by Ms Allette’s trade union representative.

Allette told her bosses she “didn’t trust” the vaccine, and that she had read on the internet that it was “unsafe” and the government was “lying about its safety”. However, in a follow-up meeting, she stated that taking any form of “non-natural medication” was against her “Rastafarian beliefs.”

After finding no reasonable excuse for her clear and categorical refusal of a vaccine, the employment tribunal found that Allette was fairly dismissed.

It determined that her position was based on an unfounded belief in a conspiracy rather than religious belief, and it dismissed her “cynical” claim of religious discrimination.

Her appeal, in which she reiterated her concern about vaccine safety, was denied.

Employer takeaways

The case comes as the mandatory vaccination policy for all patient-facing health and care workers, including those in the NHS, is set to take effect in April. Those in roles affected by the new requirement who are without an exemption and who refuse the vaccine face redeployment or dismissal as a result of the move.

Employment status

Johnson v Transopco Ltd

The Employment Appeal Tribunal has upheld the decision of the tribunal at first instance in concluding that a London black-cab driver was not a ‘worker’ when hired through the ‘Mytaxi’ App.

While still working as a self-employed taxi driver, the claimant, Mr Johnson, used the respondent’s ‘Mytaxi’ app to find passengers. He was able to turn down jobs offered through the app without penalty and focus on his own business, and in certain circumstances could reject bookings that had already been made. After the working relationship ended, the claimant filed a number of claims against Mytaxi. Mr Johnson had to be a ‘worker’ (as defined in s230(3) Employment Rights Act 1996) to make these claims.

At a preliminary hearing, his claims were dismissed as the tribunal found that the claimant was in business on his own account, with the respondent being his ‘client or customer’.

Several grounds of appeal were rejected by the EAT. The tribunal was within its rights to conclude that the claimant and respondent entered into a contract as two separate businesses, and that the respondent was a customer of the claimant’s. The size difference between the two companies was insignificant. The respondent was not acting as the claimant’s ‘agent’. Passengers who booked rides with the respondent through the app had their own contract with the respondent, while the claimant and respondent had their own.

Employer takeaways

The case serves as a helpful reminder that employment status cases are based on their own facts.

Vicarious liability

Chell v Tarmac Cement And Lime Ltd

In Chell v Tarmac Cement And Lime Ltd, the Court of Appeal held that on the facts of the case, the employer could not be held vicariously liable for its employee’s horseplay.

Roltec Engineering Ltd employed the claimant as a site fitter. Tarmac Cement and Lime Ltd operated and controlled the site where he worked. Roltec and Tarmac fitters were known to have a tense relationship. A Tarmac fitter struck a target he had placed on a bench close to the claimant’s ear with a hammer, causing him to suffer hearing loss and tinnitus.

The claimant claimed that Tarmac was vicariously liable for their fitter’s actions and that Tarmac was negligent in failing to prevent a foreseeable risk of injury.

The central question is whether the wrongful act is sufficiently connected to the employer-authorised conduct to justify the imposition of vicarious liability.

The claims were dismissed by the Court of Appeal. It followed the principles set out in Lister v Hesley Hall Ltd and Muhamud v WM Morrisons Supermarket PLC. While horseplay, ill-discipline and malice could all be mechanisms for causing a reasonably foreseeable risk of injury, the facts in this case did not support that conclusion.

Employer takeaways

This case is a reminder that it is possible for an employer to be held vicariously liable for its employees’ horseplay, but this will turn on the facts of each case.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.