Several months ago it was announced that new legislation would come into force meaning that, from 11 November, all staff working in registered care homes in England will be required to have two doses of the COVID-19 vaccine, unless they have a medical exemption.
The Government had said that the purpose of these regulations was to reduce the spread of Covid-19 in care homes and protect residents that are vulnerable to the disease.
Only a few months later, on 9 September 2021, and the government has announced that a 6-week consultation has begun on plans to make the flu and COVID-19 vaccine mandatory for staff working for the frontline health care system. The consultation begins on 9 September, and updates will be published on the government’s website.
Ministers are expected to hear from experts on whether these workers should be fully vaccinated before they are able to have contact with patients. The consultation will help inform the government on whether and how the mandate could be implemented, with a final decision expected this winter. This is being discussed after many patients being treated by these staff are those that are most at risk or suffering the most serious consequences from COVID-19. The result would be that only those who are fully vaccinated – unless medically exempt – would be deployed to provide health and care services.
To answer some questions…
I work at the NHS and am not yet fully vaccinated, what should I do?
The government’s consultation has just begun, so things are still very uncertain at the moment. The government’s website will frequently be amended with changes, so make sure you keep updated with any new decisions. The consultation may reveal that it should not be compulsory for those in this sector to be vaccinated, so if you are undecided or do not wish to be vaccinated, you’re under no obligations yet.
What will happen to staff that do not want to be vaccinated, despite the mandatory vaccination legislation?
Again, this is slightly uncertain!
Whilst it is compulsory for those that work in care homes to be fully vaccinated, the government has predicted that up to 40,000 care workers in England will not be fully vaccinated by the 11 November deadline. If mandatory vaccinations become a requirement for frontline health and care staff, much more staff would not be fully vaccinated by a required date.
One key distinction in the proposal from the Government review is that the proposal is only that frontline staff with patient contact will be required to be vaccinated. There is therefore an argument that staff could choose not to be vaccinated, but could transfer away from patient-facing roles.
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 those roles. A key consideration will also be transfer options, as to whether an employer could have transferred away from a patient-facing role, but this will be clearer from whatever guidance is released throughout the proposals.
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. There are 9 protected characteristics, which are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation and if you have one of these protected characteristics you are protected by Equality Act 2010 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 front line healthcare staff to have the vaccine might give rise to indirect discrimination claims. The policy, criteria or provision (which is needed to establish this type of claim) here would be 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 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 many 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 patients.
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.
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 an 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.
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at firstname.lastname@example.org