It has been confirmed that the COVID-19 vaccination will become compulsory for staff that care for the elderly and vulnerable. In enforcing such a requirement, organisations are likely to face a number of issues and potential pitfalls, and it is important therefore to explore the key steps if you are considering introducing compulsory vaccination for staff or those deployed in the organisation.
Compulsory vaccination requirement for Care Quality Commission registered care homes
From 11 November anyone working or volunteering in a Care Quality Commission (CQC) registered care home in England for residents requiring nursing or personal care must have two doses of a COVID-19 vaccine unless they have a medical exemption.
This rule will apply to all directly employed full-time and part-time workers, as well as those employed by an agency and deployed by the care home, extending to volunteers deployed in the care home.
The rule on the requirement to be vaccinated will also encompass others coming into care homes to work, such as healthcare workers, hairdressers and beauticians and CQC inspectors, unless they have a medical exemption.
Mandatory vaccination for those working in a CQC-registered care home will be governed by legislation; this will provide care home employers with the ability to rely on legislation when dismissing employees who refuse the vaccine without a medical exemption.
The Government has published operational guidance to the care home sector in relation to the new regime, which is called the ‘Coronavirus (COVID-19) vaccination of people working or deployed in care homes: operational guidance’.
New legal questions arising from compulsory vaccinations
The Government’s move does raise a number of important legal questions. In particular there may be tensions between the health and safety argument for making vaccination mandatory, and protections employees currently enjoy under the Equality Act 2010, as well as under European human rights laws.
Concerns have already been raised by the care sector that these tensions may leave care homes vulnerable to exposure to legal claims, such as unfair dismissal and discrimination based on disability, maternity reasons, religion or beliefs.
There are also fears the care homes will become legally responsible for verifying vaccination status of people over whom they have no employment oversight.
Dealing with objections and refusal to be vaccinated
Organisations will need to consider a requirement that staff are vaccinated as part of their ‘COVID Secure’ risk assessment. In carrying out that assessment, a reasonable balance needs to be struck depending on the close contact risk between staff and members of the public that an organisation poses, before any vaccination policy is produced requiring employees to get vaccinated. That risk assessment will differ from sector to sector.
If organisations having carried out a risk assessment, could show that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19, they may be able to mandate vaccination as a health and safety requirement.
Some organisations may also be able to establish that having a compulsory vaccination policy is reasonable in the circumstances of their business.
Even where it can be argued there is a compelling health and safety based requirement for vaccination or requiring vaccination is reasonable, employers will still need to tread carefully and follow fair procedure in dealing with any refusals from their employees to be vaccinated.
Unfair dismissal risk – employees
It may be argued that 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.
Before any such dismissal can take place though, organisations would need to take the following procedural steps as part of ensuring a fair dismissal process including:
- 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 and working from home.
Dismissal ought to be considered as very much a last resort
Failure to follow fair procedures in dealing with employees reluctant or refusing to be vaccinated could amount to an unfair dismissal. Employees feeling pressurised into having the vaccine may also seek to resign and claim constructive dismissal.
NB: Businesses should note also that, whilst generally speaking employees need at least two years’ service to claim unfair dismissal, in the case of a dismissal for health and safety reasons (the employee’s own) there is no length of service requirement to bring a claim.
Discrimination considerations – employees/workers/volunteers
In addition, in dealing with any representations made by employees or those deployed giving reasons for refusing to take the vaccine, organisations should be particularly mindful of the following categories of employees/ those deployed:
- those advised by their GP not to take the vaccine due to underlying health conditions, such as allergies;
- 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.
Given the nature of these objections, the member staff 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. Organisations need to be aware that the Act also affords protection to job candidates.
Faced with such objections by both those employed or deployed by an organisation, in order to avoid unanticipated discrimination claims and liabilities, it’s important that all organisations follow proper procedures in addressing the objections; together with considering practical steps to deal with them, including offering alternative work arrangements.
Key considerations and practical steps organisations need to consider if they wish to implement a compulsory vaccination regime
Steps should include the following:
- Informing and consulting staff about the requirement for vaccination against COVID-19 on both a collective and individual basis. The delivery of this information will most likely differ between each business as it will be dependent upon culture. Some organisations may prefer a policy of encouragement over enforcement in the initial stages.
- Discussing and addressing any anxieties and concerns raised on a one-to-one basis and allaying any concerns. For example, about the vaccine’s safety or ill-founded concerns that have been cited in the media about the impact of the vaccine on fertility.
- Any concerns raised based on disability, pregnancy or maternity reasons, religion or belief need to be looked at very carefully, given they may afford protection against discrimination under the Equality Act 2010 regardless of employment status.
- Staff exempt from the vaccination requirement on medical grounds should be identified in particular, to avoid claims of discrimination.
- Providers should consider redeploying those that are still reluctant to be vaccinated. This is particularly important in the case of staff citing a medical reason for exemption from vaccination, mindful that they should be protected under the Equality Act 2010 and an employer’s duty to make reasonable adjustments.
- Contracts of employment will need to be updated to reflect that vaccination is now a condition of employment. Once again, amendment ought to be consulted on as a matter of best employment practice.
- Employment policies will also need to be updated, including Health and Safety, Vaccination and testing policies to reflect the vaccination requirement.
- Consideration should also be given to alternative methods such as strongly encouraging employees to accept the vaccination and the introduction of a vaccination policy explaining the business stance on vaccination.
Julian Cox explored these issues in an interview with LBC on Sunday. To listen to Julian’s interview, please click below.
Julian Cox is Head of Employment at BLM