Yesterday afternoon, Matt Hancock confirmed to Parliament that COVID-19 vaccinations are to become compulsory for staff in care homes in England. Consultations will also begin on introducing a similar rule for other health and care staff.
The government intends to introduce this by way of statutory Regulation. The new legislation will mean that from October – subject to Parliamentary approval and a subsequent 16-week grace period – anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have 2 doses of a COVID-19 vaccine unless they have a medical exemption.
The government has said, in its subsequent press release, that the new requirement will apply to all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home.
People coming into care homes to do other work, for example healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new regulations, unless they have a medical exemption.
The government has also announced a consultation about extending this to the NHS and potentially wider, looking at whether or not to make COVID-19 and flu vaccination a condition of deployment in health and care settings. Given the view taken by the government on social care, this step is likely to have significant consequences for employers in both social care and health care.
What does this mean for employers?
Whilst we acknowledge that there has been a mixed reaction to this news, our view is that should this development come into force, it would be helpful for employers - as a last resort. The starting point (whether vaccinations are mandated or not) should still be to encourage employees to get vaccinated – effective communication and engagement with staff remaining key in all scenarios. This is particularly important because we know COVID-19 is likely to mutate over time so staff are likely to need annual boosters, not just the initial vaccination. Every employer would wish to have properly engaged staff on this issue rather than an annual exercise in coercing staff to be jabbed. However, this proposal is likely to give employers a statutory framework to require mandatory vaccinations where reasonable attempts at persuasion have failed. It should provide a stronger defence where workers are redeployed or dismissed when they fail to be vaccinated.
When we reported on this issue in February this year we explained that in the absence of an express contractual right or power for an employer to compel employees to have a vaccination, the starting point for mandatory COVID-19 vaccination is whether this would constitute a “reasonable management instruction”. In looking at whether an instruction is “reasonable” the courts will consider and balance the rights of an employee against the reasons for the instruction by an employer. If considered reasonable, the consequence of an on-going refusal by an employee would then become an act of misconduct which could lead to disciplinary sanctions including dismissal.
If the government does in fact introduce a legal requirement for vaccinations it will provide employers with a partial defence to employment claims as there will be a statutory reason for dismissal (which is probably a less antagonist route than dismissing on misconduct grounds for failing to comply with the instruction to be vaccinated). However, importantly, in order to fully defend claims of unfair dismissal and discrimination employers will still need to evidence:
- That they have taken account of the reasons behind any refusals and where these are based on protected characteristics (e.g. a disability or medical condition which prevents vaccines) that they have taken proper account of these reasons in each individual case; and
- That they have undertaken a fair process before dismissal. As well as following the government process by giving staff 16 weeks to change their position, employers should consider alternatives to dismissal where possible. This could involve considering measures such as moving employees or altering their roles so they are not exposed to as much risk, nor expose others. Any concerns raised will need to be properly considered and conclusions documented.
An employment tribunal would need to consider whether disciplinary action or dismissal by the employer was a proportionate response to the refusal to be vaccinated. Health and care professionals have a duty to ensure they are able to protect the health and safety of those they care for. Despite the majority of care home residents now being vaccinated scientists are still concerned about the ongoing impact of new variants and therefore this is clearly a relevant factor in justifying ongoing mandatory vaccinations to protect a highly vulnerable group.
As noted above, with the consultation being extended to the NHS (and little reason to consider broadly similar public policy issues don’t apply) our view is that the way in which the care sector deals with the new requirements is likely to be the benchmark in due course for the NHS (and potentially other healthcare providers including in the independent health sector).