The Government has announced that Covid-19 vaccines will become mandatory for all staff in registered care homes that deal with nursing and personal care from 11 November 2021. It will also mean that visitors to such care homes (such as maintenance workers) will also need to be included in the mandatory vaccine requirement.
Whilst the protection of vulnerable residents is always paramount, this mandatory vaccine requirement will likely cause further staffing issues in a sector that already experiences significant difficulties in recruiting and retaining staff. It is very difficult to predict how employees will respond and whether there will be any resistance that might be significant enough to impact on recruitment and retention. Many care home providers are considering recruiting more staff than they need to ensure the when it comes to compliance with the mandatory requirement, and in the event they have to terminate staff because of it, they will still have sufficient cover to ensure they can fully deliver their residents' care.
From an employment law perspective, if vaccination becomes a legal requirement, it will be a potentially fair reason to dismiss an employee, provided that employee could not continue to work in their position (or an alternative position if one exists) without that legal obligation being breached. It will therefore usually be reasonable for an employer to dismiss a care worker who refuses to be vaccinated, but there is no automatic right to do so (and such dismissal will always be subject to a fair process).
Therefore, employers will still need to be careful to follow a fair procedure/process so as not to be at risk of unfair dismissal claims (for employees that have two or more years' continuous service), which is likely to involve holding a meeting with the employee (within which they have the right to be accompanied by a trade union representative or colleague), considering the employee's reason for not being vaccinated, considering any alternative roles away from the frontline that the worker can be re-deployed into and allowing an opportunity to appeal. There will not normally be any obligation on the employer to 'create' an alternative role away from the front line and in most care provider settings there are unlikely to be many such roles in any case.
Equality Act claims for discrimination presents the most significant risk in terms of legal challenge. This might arise where an employee or worker has a disability which means they are unable to receive, or have greater concerns about receiving, the vaccine, where an employee is pregnant or it might also be an issue if the reason for the refusal is due to a bone fide religious belief. Such reasons will need to be taken into account in any decision to dismiss and if the Equality Act does apply to any such employees then they may have some enhanced rights (such as the obligation on the employer to make reasonable adjustments to accommodate an employee with a disability).
There will be employees or workers who are medically exempt from having the vaccine. Regulations state that care home providers will need to ensure that nobody enters care homes unless they fall into one of the identified exceptions, being care home residents, friends and relatives of care home residents, emergency help providers and children under 18. If someone who does not fall under the exemptions requires entry, they will need to provide evidence that they are fully vaccinated against Covid-19, or for clinical exemptions recognised as exceptional clinical reasons, cannot be vaccinated.
Public health guidance states that it is ‘safe’ for pregnant or breast feeding woman to receive the vaccine but most care providers (if not all) will likely find a way to accommodate women who do not want to take the vaccine through periods of pregnancy and breast feeding. Such employees will not be legally exempt and so will still not be able to work in a care home that falls within scope of the mandatory requirement and so employers will have to find duties that are outside of the homes which will present come issues for care providers.
Many care providers started to make vaccines mandatory on appointment some months ago, but had not applied this to permanent staff as yet through fear that it might cause recruitment issues. Another issue that care providers need to consider in implementing the mandatory requirement is the timing of dismissal process and ensuring that notice is given without them having to consider paying any residual statutory notice in lieu - which could become expensive in what is a relatively low margin business.
In addition to potential challenges from employees in the Employment Tribunals for unfair dismissal and breaches of the Equality Act, the decision to make vaccinations mandatory could also see potential challenges for Human Rights Act violations, although such claims are not as accessible to low paid workers (such as front line care workers) unless they can find a way to fund legal costs and fees, which might be more possible if the trade unions are willing to support it (which is not yet clear).
Care providers need to get ahead of the time line on mandatory vaccines as the legislation has now been approved and it is most important that the administrative burden leading into compliance is not underestimated. On each employees HR file there will need to be record of the them being double jabbed or to confirm their medical exemption. The NHS app will provide vaccine passports and the NHS website has a request option for formal letter to prove double vaccinated status. Verification of any exempt medications is not yet clear but will likely involve a letter from a GP or hospital consultant.
Each home will also need to amend their visitors process to ensure records are also taken of those who are visitors to the site and this may include discussions with any contractors who cover maintenance contracts and catering services whose staff will also need to be double vaccinated.
For more information on the article above contact Stephen Moore
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