In the last few weeks we have seen a number of well known care providers introducing new policies, whereby new staff will be required to have the COVID vaccine prior to starting work. Some care providers have gone as far as requiring current care staff to be vaccinated, unless they are unable to on medical grounds. Some care providers have seemingly made it clear that if staff members refuse, purely out of choice, then this will make them ‘unavailable to work’ within frontline care settings. It seems that this decision has been made, amid concerns over the uptake of the vaccine amongst care workers across the UK.
No doubt, these decisions have been made to ensure the protection of those being cared for, as well as for staff members. However, with more care providers deciding to take this step, the question is now whether this raises employment concerns, for discrimination and unfair dismissal, amongst other things.
An employer’s duties to both employees and members of the public, or in this case care residents or service users, in relation to requiring employees to get vaccinated against COVID-19 falls under UK health and safety legislation. The Health and Safety at Work Act 1974 requires businesses to ensure a safe workplace environment and to take reasonable steps to reduce workplace risks. Employees also have a duty under the same Act to co-operate with their employer so that it can comply with its own obligations.
This means care providers and businesses generally; need to consider a requirement that staff are vaccinated as part of their ‘COVID Secure’ risk assessment. When assessing this, a reasonable balance needs to be struck depending on any close contact risk between staff and members of the public that an organisation poses, before any vaccination policy is produced, which may require employees to get vaccinated. Looking at the Care Sector, staff are highly likely to be having regular contact with elderly and/or vulnerable service users. Their patients are likely to be those who are deemed to be the most at risk within society and sadly those who suffered the highest number of deaths throughout this pandemic. With this in mind, arguably asking staff to ensure they are vaccinated is likely to amount to a reasonable management instruction. There can be no dispute that the rationale behind such a request would be to protect staff members and members of the public/service users and it is a compelling health and safety based requirement.
However, the difficulty arises in situations where care staff refuse to have the vaccine, for no medical reason, purely out of choice. If such refusal leads to a dismissal, the question is whether an unfair dismissal and/or discrimination can be claimed or whether the employer’s duty to protect its service users and other staff, takes precedence.
Is this policy unfair?
In sectors such as care, where a policy or rule is in place that means staff (new and current) are required to accept the vaccine in order to work and continue their duties, it may be argued that a staff member’s failure to follow a reasonable management instruction can amount to a substantively fair reason for dismissal, most likely ‘for some other substantial reason’ (SOSR) under the Employment Rights Act 1996. This essentially means where the circumstances are such that a reasonable employer was entitled to conclude that the employment could not continue. With that being said, the usual procedural steps that form part of a fair dismissal process must be followed, which include:
- Giving the employee the opportunity to set out the reasons for their objection;
- Properly considering those reasons; and
- Giving careful consideration as to whether there are any alternatives to dismissal e.g. relocating an employee’s workspace away from others/the frontline and working from home.
As ever, dismissal should be deemed the last resort and failure to follow fair procedures in dealing with employees reluctant or refusing to be vaccinated could amount to an unfair dismissal. Likewise, care providers ought to carefully consider how policies are delivered to staff. If employees feel pressurised or forced into having the vaccine, they may also seek to resign and claim constructive dismissal. It is important to note that in cases of a dismissal for health and safety reasons (the employee’s own) there is no length of service requirement to bring a claim for unfair dismissal.
Is it discriminatory?
When care providers are dealing with employees who give reasons for why they are refusing the vaccine, they should be particularly mindful of the following categories of employees:
- Those advised by their GP not to take the vaccine due to underlying health conditions, such as allergies;
- Those who are pregnant or attempting to get pregnant, for whom the vaccine is not recommended;
- Those who have objections to taking the vaccine due to religious or philosophical beliefs because of the vaccine components; and
- Those for whom the vaccine is not available e.g. as at this present time, younger employees under the age of 50 for whom the vaccine may not be available for a number of months. (This may not be particularly relevant to those working in care whereby it is understood that everyone is offered the vaccine, regardless of age)
Depending on the nature of a staff member’s objections, they may be protected from discrimination (both direct and indirect), together with harassment and victimisation under the Equality Act 2010 (the Act) based on disability, religious or philosophical belief or age respectively. Such protection is afforded to workers under the Act, not just employees, and may therefore extend to casual and agency workers. The Act also affords protection to job candidates.
When faced with such objections, in order to avoid unanticipated discrimination claims and liabilities, it’s important that care providers follow proper procedures in addressing the objections and consider practical steps to deal with them, including offering alternative work arrangements once again.
Where does this leave us?
There is suggestion amongst the legal press currently that it may be easier for care businesses to require new starters to be vaccinated, in order to be provided with a role. It has also been suggested that employers should be slightly more cautious, when it comes to current staff members, with the Government and trades unions both seemingly critical of potential dismissals of those who refuse the vaccine.
However, in cases where an enforcement policy has been adopted and someone is dismissed (with correct procedures followed), it is likely a Tribunal would consider all the circumstances and decide if, in striking a balance between the interests of the employer and the interests of the employee, whether it was reasonable to impose such a rule. Sadly, the care sector has suffered far more deaths than any other. It is also difficult to gauge the impact of those in care who have contacted Covid and survived but been left with ongoing health issues. With this in mind, it is no wonder that care providers are choosing to introduce these policies in an attempt to mitigate infections and their severity .
Now there has been a wider rollout of the vaccine, its successes are becoming far more known and celebrated. There has been suggestion that the first dose of the vaccine offers more protection than what had been initially anticipated. More and more people in the general public have been offered this and chosen to take it, with side effects (if any) being extremely minimal. With more science based knowledge, it could be argued that any rationale to refuse the vaccine will reduce.
The fact that some large care providers have taken this decision and step to introduce such a policy indicates clearly that it is felt, that having a fully vaccinated work force is in their best interests. The question over whether such insistence is appropriate and should be allowed is something that the courts or tribunals have not yet dealt with. Likewise, whether employers or care providers would be justified in terminating the employment of staff who refuse without good reason is something yet to be decided upon.
Whilst those within the legal profession will no doubt have their own views and arguments both ways, as has often been the case with legal issues surrounding Covid, these issues and questions are new. For that reason, until this issue such has gone before the Courts or Tribunals, no one can provide a firm answer on whether a discrimination or unfair dismissal claim could be successful in cases where there has been a refusal to have the vaccine, despite a policy being in place enforcing this. Undoubtedly, claims will come to light in the coming months/years, which will no doubt clarify the law surrounding this.