In the wake of the COVID-19 pandemic, the care sector has seen thousands of care home workers resign or be dismissed, following the introduction of mandatory vaccination legislation on 11 November 2021. The current legislation requires mandatory vaccination for care home workers within CQC registered care homes that provide accommodation for people needing nursing or personal care, unless they can evidence a valid exemption. It is estimated that the care home workforce has lost around 40,000 staff as a result.
After growing concern over the stability of the health and social care sector, the Secretary of State for Health and Social Care, Sajid Javid has announced to Parliament that the government will launch a consultation on ending Vaccination as a Condition of Deployment (VCD) in health and all social care settings in the United Kingdom. This move came days before the 3 February 2022 deadline for unvaccinated NHS workers, who have been facing an ultimatum of having their first dose of vaccine or being dismissed.
Subject to the responses received to the consultation and parliamentary approval, the Secretary of State will revoke the regulations.
In light of the recent developments, I suggest that it would be wise in the circumstances for organisations across both sectors to pause the service of any notice of termination, to employees affected by the deployment regulations and any consultation meetings taking place as required by law, whilst we await the outcome of the government consultation and likely repeal.
In spite of the likely U-turn the Secretary of State has repeated that vaccination remained a “professional duty” for health and social care staff and in order to promote this, he has:
- Written to professional regulators across the health sector asking them to review their guidance on vaccination with a view to emphasising the importance of getting vaccinated and boosted.
- Asked the NHS to review staff policies on hiring staff and deploying existing workers, taking into account vaccination status.
- Asked Department of Health and Social Care officials to consult on reviewing its code of practice on the prevention and control of infections, which applies to all Care Quality Commission-registered providers, to strengthen COVID-19 requirements.
Whilst it currently remains a legal requirement for all CQC registered care homes to ensure their workforce are double vaccinated, following the government consultation and any likely repeal, going forward care providers may wish to introduce mandatory vaccination policies (if they have not already done so) if they want to continue to insist on full vaccination amongst their staff, in accordance with their ongoing health and safety obligations. The onus is on the employer to take steps to minimise the risk of catching and transmitting the virus by making changes to the way in which they operate. It follows therefore, that any dismissal going forward where a care home or social care worker is not effectively vaccinated without a medical exemption may be justified as fair on Health and Safety grounds supported possibly by the Code of Practice.
Organisations need to be aware that in these situations, the grounds for an employee claiming unfair dismissal relate to health and safety matters, as such, the general two year qualifying requirement for an unfair dismissal claim may not apply, so even staff with less than two years’ service may be able to claim automatic unfair dismissal.
Prior to the compulsory vaccination regulation, it was held by the employment tribunal in Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 that dismissing a care assistant who unreasonably refused to be vaccinated against COVID-19, was a failure to comply with a reasonable management instruction and thus the dismissal on grounds of gross misconduct was fair. The tribunal considered it a social necessity of a pressing nature to have staff vaccinated, due to the recent outbreak and deaths from COVID-19 at the home, together with the imminent withdrawal of insurance cover. The Article 8 right to a private life had to be balanced between that of the residents and that of the employee.
In the event that the consultation for mandatory vaccination is successful, the current fair reason for dismissal in accordance with the statutory requirement will be revoked. Whilst the decision in Allette v Scarsdale Grange Nursing Home Ltd is encouraging for care home operators to dismiss employees refusing vaccination without a valid form of exemption, in accordance with any mandatory vaccination policies regardless of the possible repeal of the regulatory VCD requirement, the judgment is only a first instance decision and accordingly, not legally binding. The judgment emphasised that each case will turn on its own facts. Therefore, it raises the question as to whether the employment tribunal would conclude the same result of fairness today, based upon the current Coronavirus environment that has decreasing positive cases and hospitalisations. An organisation that wishes to enforce a mandatory vaccination policy will have to demonstrate the reasonableness for such a policy, as a health and safety requirement, balancing an employee’s Article 8 rights to that of the residents, with emphasis on the employer’s health and safety obligations. I predict that many more decisions will follow and eventually there will be a settled position established in case law on the question of the fairness of such dismissals in the current Coronavirus environment.
It is vital for employers within the health and social care sector to follow proper procedures, if they do decide to implement mandatory vaccine policies, not only to protect staff and patients in accordance with their ongoing duty of care obligations, but to keep the NHS and social care sector safe from potential unanticipated liabilities.
If organisations have already implemented a mandatory vaccine policy prior to the Secretary of State’s announcement and are intending to proceed with consultations, re-deployment and dismissing non-vaccinated individuals prior to the outcome, it would be sensible to make it clear in any letter of dismissal that they are relying on the current law and the fact that they will be maintaining a policy of vaccine compliance regardless of any changes to the law.
Organisations also need to be particularly mindful of penalising 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; and
- those who have objections to taking the vaccine due to religious or philosophical beliefs because of the vaccine components.
Given the nature of these objections, the staff member 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 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.
At present CQC care home workers can self-certify their medical exemption until 31 March 2022, after 31 March 2022 they will need to be evidenced by a formal medical exemption. According to the government’s current operational guidance, the standard of proof required for those working or deployed in care homes ought to be in the form of the COVID pass. If the mandatory vaccination requirement is repealed and an organisation wishes to proceed with a mandatory vaccination policy, they will need to decide on what represents valid proof of medical exemption and whether they are going to allow staff to continue to self certify. It is hopeful that following the consultation, the Code of Practice will be updated to provide guidance as to what constitutes valid proof of exemption.
Consequently organisations need to proceed with caution to avoid triggering unanticipated liabilities. It would be prudent to wait for the outcome of the consultation and intended update to the Code of Practice, before reviewing what their organisation’s policy ought to be going forward.
This article looks at the impact of this development from an employer’s point of view but clearly this will also have an impact on the residents and also their family. They will need an assurance that the safety of those most vulnerable remains paramount.
Written by Jessica Kinnear at BLM (firstname.lastname@example.org)