The Government announced on 17 June 2021 that care home staff will be required to have coronavirus vaccinations “to protect residents”. This announcement has caused much controversy, not least because some of the staff may not be having the Covid vaccine due to disability or religion, and that may now risk their jobs.
The requirement, which is subject to parliamentary approval and a 16-week grace period, will apply to all workers employed directly by the care home or care home provider, those employed by an agency and deployed by the care home, and volunteers deployed in the care home. England’s Chief Medical Officer, Professor Chris Whitty, has said doctors and care workers have a “professional responsibility” to protect their patients. At Thrive we think discussions, explanations and persuasion are always likely to be more effective than mandating something like a vaccine. However, this does need to be weighed against the urgency of protecting vulnerable people though.
It may be possible for care sector employees to bring claims if they are disciplined, relocated, or dismissed for refusing to have the vaccine. Below we draw attention to the main legal issues here.
Can employees claim unfair dismissal if they are dismissed for not having the vaccine?
An employee could bring an unfair dismissal claim to the Tribunal if they are dismissed for this reason. In such case, employers will argue they had a fair reason to dismiss due to failure to follow a reasonable management instruction amounting to misconduct and it is likely to be seen as reasonable by the Tribunal as the Government have mandated vaccines in care homes.
Therefore, it is likely that any claim for unfair dismissal will be defended on the basis that it is a fair reason and that it is within the band of reasonable responses available to the employer because they have been mandated to do this by the Government, and the claim would therefore be likely to fail.
Employers could also rely on ‘some other substantial reason’ for the reason for the dismissal, for example, they couldn’t allow people to work who might put their residents at risk. This is unclear whether that would be a strong argument, especially if the employer hasn’t taken that approach yet to people who haven’t had the vaccine despite being eligible. All employers must still follow a fair procedure in any dismissal as set out in the ACAS Code of Practice.
Can employees bring a claim for discrimination?
Many individuals have not had their Covid Vaccine up to this point due to a protected characteristic, which includes age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation and if you fall within one of these characteristics you are protected by the Equality Act 2021 from any discrimination.
Uptake in the vaccine is much lower amongst ethnic minorities, suggesting that certain cultures are less willing to receive the vaccine. Other concerns include a lack of trust in the safety of the vaccine. Some religions mean that people are unable to be vaccinated, whilst some disabled have not been permitted to be vaccinated for health reasons. Therefore, these individuals are placed at a substantial disadvantage if vaccines are made mandatory because they may lose their jobs compared to someone who does not have a protected characteristic.
Requiring all care staff to have the vaccine might give rise to indirect discrimination. The policy, criteria or provision here being that ‘all staff are required to have a vaccine’ may have a disproportionate impact on employees from certain religions or with disabilities impacting their ability to accept the vaccine. The question then is whether it is a justifiable requirement and is it a proportionate way to achieve a legitimate aim.
Employers are likely going to argue they have a ’legitimate aim’ to protect the lives of the most vulnerable people. The question is whether it would be a proportionate way of achieving that, particularly if there are alternatives such as a requirement to provide a negative test before every shift that would avoid the need to dismiss, and which wouldn’t amount to discrimination.
It is likely going to be a hard time for employees who find themselves in this position during a pandemic. Employers should keep in mind that dismissal is not the only option available, employees could be demoted or relocated so they are not in direct contact with high-risk residents, although in many cases this may be difficult for employers to put in place if, for example, the person is a carer.
What should employers and employees do to ensure the best possible outcome?
This is extremely difficult for both employers and employees therefore it is crucial that both parties engage in an open and honest process. It’s important for employers to be as transparent as they can with their employees with how they are managing the situation and communication and following the correct procedure is key to minimise legal risks.
Employers should be mindful of employee’s mental health during this difficult time and offer support where needed and be careful not to damage the morale of staff within the homes.
How can Thrive help?
Thrive offers comprehensive HR services and as qualified employment and HR lawyers, we know the consequences of getting HR decisions wrong. As a HR client we work with you to let you focus on what you need to be doing in the business with the peace of mind that all decisions are run past a qualified lawyer before you implement them especially when the law is changing so much during this time, making the right decision is crucial to avoid legal complications down the line.
When you partner with Thrive for outsourced HR support, we can reduce your stress and free you up to work on the business and to make HR decisions with confidence.
With people at the core of every successful business, keeping on top of the ever-changing legislation and making the most out of your people can be challenging, but we are here to help.
Get in touch today to invest in your business and make your HR stress free. Email Jodie.firstname.lastname@example.org