It was reported earlier this week that COVID vaccinations are due to become compulsory for care home staff.
Further to our previous article on the legal issues of ‘no jab, no job’ policies, in this update Chris Dobbs, Employment Solicitor, explores what this means for the care sector, the businesses involved and those working in it.
Are COVID vaccinations compulsory for care workers?
Approximately 1.5 million people are engaged in the care sector in some capacity. Reports indicate that the plan is for compulsory vaccination of the majority of these people unless a medical exemption can be shown.
The Health Secretary has also announced that the plan would include regular visitors to care homes such as tradespeople, social support staff and other medical and care professionals such as hairdressers and visiting NHS staff.
The Scientific Advisory Group for Emergencies (Sage) had recommended that at least 80% of care home staff should have had at least a single dose in order to limit the spread of the virus.
Again, media reports indicate that only 65% of homes have achieved this figure some six months after the start of the vaccine rollout.
What issues might mandatory vaccination cause?
The National Care Forum (NCF) described the move as a logistical nightmare with concerns that the steps would make care home business owners accountable for ensuring compliance of anyone in regular contact with their sites.
There are growing concerns that the decision to require vaccination will also lead to staff shortages if care workers, contractors and others engaged in the industry chose to leave their jobs rather than agree to be vaccinated.
The logistics are a real concern as business owners will need to take steps to ensure staff and those regularly involved in the industry are fully vaccinated.
This not only means taking steps to ensure that this is the case but also having access to the medical records, processing these securely and, presumably, being obliged to take action against anyone who refuses.
Is COVID vaccination mandatory for NHS staff?
Matt Hancock has indicated that he will consult with a view to extending this policy to NHS staff.
Is compulsory COVID vaccination legally enforceable?
Reference has already been made to other guidance recommending vaccinations for medical staff such as Hepatitis B. However, there is no requirement in law for care home staff to have any specific vaccine at this stage.
More accurately, requirements for frontline healthcare staff to have the Hepatitis B vaccine is often by individual workplace policy enacting the guidance.
There is a clear difference between an employer policy which may be lawful and a legal requirement. I am not aware of any piece of UK legislation which requires vaccination and there has been no mandatory vaccination by law in the UK since smallpox in the 1850s.
Compulsory COVID vaccines: An Employment Law perspective
From an employment law perspective, following Government regulations will make disciplinary steps for refusal much easier to manage. If it is a legal requirement for individuals to be vaccinated, the grounds for unfair dismissal in this particular situation will be harder for a potential claimant to achieve.
However, with the courts obliged to read legislation with regard to human rights law and, by default, the Equality Act, employers may still be concerned about the risk of discrimination claims.
However, it is likely that any challenge of this kind will also require a simultaneous challenge as to the validity of the legislation in the first place.
A specialist employment solicitors view
Chris Dobbs says: “At a time of particular pressure on the care and health sector, this requirement is yet another consideration and cause for concern for employers.
It is likely that these regulations will become law and employers should take steps now to consider the practicalities and options for managing the process.
As part of any ongoing promotion of the vaccine, continue to engage with staff and identify their plans for vaccination while addressing the concerns sympathetically of those who are hesitant.”
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