As shown in the BLM Policy blog of 15 December 2020 (link here), COVID-19 (C-19) compensation claims appear to be gathering some momentum although, at this point, the total number of such claims that have been officially registered with the Compensation Recovery Unit of the UK Department for Work & Pensions remains very low.
As we have noted previously, new and untested questions on standard of care and legal causation would likely arise in any litigated C-19 claim. In this blog, we re-visit certain aspects of these potential questions in the context of vaccinations for care home staff.
Following the UK’s Joint Committee on Vaccination and Immunisation (JCVI) advice, care home staff, older residents in care homes, and frontline health and social care staff are among the first people in the UK to whom the Pfizer-BioNTech C-19 vaccine is being provided as part of the first wave of vaccine distribution.
What if members of staff at a care home refuse to be vaccinated? Nadra Ahmed OBE, chair of the National Care Association, spoke recently on Radio 4’s Today programme on the number of care home workers likely to consent to vaccination. She noted, with reference to the association’s research, that between 50-60% of staff are “very keen” to be vaccinated but about 17-20% were “saying they definitely won’t have it”, with the remainder saying that they would “wait and see.” Ms Ahmed concluded that “we are looking at potentially 40% who decide not to have it.’
Speaking in general terms earlier this month, the UK Prime Minister “strongly urged people” to get the vaccine as soon as it is offered to them but noted that “it is no part of our culture or our ambition in this country to make vaccines mandatory”. The First Minister of Scotland echoed the UK Prime Minister’s comments, saying “Vaccination has traditionally been something that is voluntary, not compulsory.” The chair of the C-19 vaccination programme in Wales took the same line by noting that “no-one will be forced to have it” but that everyone was encouraged “when you’re called, to accept this offer, which will save lives and protect the NHS and eventually help us to resume normal life.”
Employment law implications
What are the employment law implications if an employee refuses to be vaccinated?
An employer cannot force an employee to be vaccinated. If an employee refuses the vaccine, the employer will need to carefully balance the need to protect residents and other staff with their duties to the employee. Could the employee be allocated a role that does not involve face-to-face contact with residents, or is there a way their role could be modified to minimise the risk of infection? Disciplinary action or dismissal is likely to lead to the employee making a successful employment tribunal claim unless an employer can show that they did everything they could to allow the employee to continue to work without the vaccine. Government guidance is that the vaccine should not be given to pregnant women or women who plan to get pregnant within 3 months. Requiring an employee to state why they have refused the vaccine may be discriminatory and should be avoided.
Standard of care
To fulfil the common law standard of care in a C-19 context, as informed by such workplace regulations as may be relevant, a care home is required to take reasonable steps and to have practices and procedures in place which can be evidenced..
If we assume that a care home is currently meeting the requirements on standard of care but becomes aware that 20% of its staff have refused the vaccine, to what extent, if any, does this give rise to a “risk” which should be factored into any risk assessment? To what extent, if any, does the standard of reasonable care require an employer to take steps on the basis of any such risk? If any steps should reasonably be taken, what should those be? Would the position be different if 40% of staff refused?
These questions are difficult ones, not least because they potentially straddle employment law and the law of tort (delict in Scotland) and also because, for understandable reasons, no such questions have ever been considered by the courts north or south of the border. The best advice at this stage may be that care providers should seek legal advice on a case-by-case basis both from an employment law perspective and from the potential tort / delict perspective.
Establishing breach of a duty to take reasonable care is never enough, of itself, for a claimant to succeed in a common law personal injury damages claim. A legally sufficient causative link between the breach of duty and the injury said to arise from that must also be established. Both Scots law and the laws of England & Wales tend, in general traditional terms, to apply a “but for” test on causation by asking whether, on the balance of probabilities (more likely than not), a particular outcome would have been reached regardless of a particular event. If the answer is no then causation is established. In industrial disease claims arising from exposure to known hazardous materials, however, the law evolved to apply lower causation tests than the “but for” one , first by developing a “material contribution” test and then a “material increase in risk” test, each of which could suffice in appropriate cases to meet the test for establishing legal causation. Crucially, though, application of either of these lower tests requires the claimant first to establish, on the balance of probabilities, that he or she was, in fact, negligently exposed to a hazardous material.
Because C-19 personal injury claims are new, it cannot be said with 100% certainty whether a court, north or south of the border, would take a traditional “but for” approach to legal causation in such a case. Equally, it cannot be said for certain the extent, if any, that “material contribution” or “material increase in risk” may play a part in any court’s consideration of this matter. It also cannot be ruled out that a court with suitable authority might develop a new or variant test for legal causation in these circumstances.
Suffice, here, to say that a care provider operating with a material percentage of its staff who are known to have, without justification, refused a C-19 vaccine when offered could arguably be said to be exposing others at the care home to a materially increased risk.
Given the multi-faceted, unprecedented and constantly developing issues considered in this blog, this piece of writing should not be considered as legal advice or the expression of any definite legal position applying in any particular case. Rather, the purpose of this blog is to try to assist during these very difficult times by flagging issues for consideration. The point made above is worth repeating: The best advice at this stage is for those involved in the care sector to seek legal advice on a case-by-case basis both from an employment law perspective and the potential tort / delict perspective.
This blog will assist those seeking advice by giving some idea of some of the legal issues that might be involved.
Greg MacDougall, Partner and Solicitor Advocate, Edinburgh, and Vanessa Latham, Partner, London