Update on the potential impact of carers refusing vaccination

In our previous blog of 17 December, we considered the potential employment law implications for care homes where staff refuse to be vaccinated against COVID-19.  The vaccination programme is now picking up pace across the country, with the Government announcing earlier in the week that more than 4 million people had received their first dose. However, the daily figures for COVID-19 related deaths reached a peak of 1,820 on Wednesday, amid serious concerns that the vaccination programme is not being carried out quickly enough to stop the increasing number of deaths in care homes in recent weeks.  

Care sector employers will soon be facing the practical reality of what to do if staff refuse the vaccine. The first question which will no doubt be raised is that if most of the residents and staff have been vaccinated, what is the harm? We know that the vaccines are not 100% effective and there is still uncertainty at this time around the impact of the decision to delay the second dose. The risk of contracting COVID-19 even after vaccination remains, particularly to care home residents who are likely to be elderly or clinically vulnerable. Vaccination of all staff will reduce that risk. 

Although little is known about the risks of transmitting the virus after vaccination, care homes have an obligation to continue to reduce the risk to residents and staff to the lowest reasonable level. They face criticism and the risk of claims by those who have been vaccinated if they allow unvaccinated individuals into a home. Claims could even be made by the unvaccinated staff if they are allowed to continue to work without protection, although there would be strong arguments of contributory negligence and “volenti non fit injuria” (i.e. that they had placed themselves in harms way and should not be compensated).  

The National Care Group (NCA) is seeking legal advice on whether care home staff can be forced to take the vaccine.  Initially its research suggested that 17-30% of staff were saying they definitely wouldn’t have it.  Nadra Ahmed OBE, Chair of the NCA has indicated that this figure has reduced to about 6-8% but that remains a significant proportion of the care sector workforce.

Some care providers are already taking a stance. Peter Calveley, Chair of Barchester is reported to have told BBC Scotland that they will not employ new staff who aren’t prepared to have the vaccine and they are understood to be developing a policy for current employees.  

Asking employees to be vaccinated might be considered a reasonable management instruction, particularly in the face of the consequences for residents, other staff and visitors if staff are not vaccinated. However, employers need to be very wary of introducing any blanket policies. Individuals may have legitimate health or religious reasons for refusing and so requiring staff to have the vaccination could be an act of discrimination. The breadth of protection provided by the Equality Act means that refusing to recruit new staff who have not been vaccinated could also be discriminatory, as could any detriment suffered by workers who are not actually employees, for example bank staff, agency and casual workers. Care sector employers will need to look at ways of allowing staff who decline the vaccine to continue to work without it, and also ensure they follow proper procedures if they decide that they can no longer employ a person who has not received the vaccine.

Vanessa Latham, Partner, BLM

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