According to reports in the media this week, Whitehall sources are saying it is shortly about to be announced that vaccination is to be made compulsory for care home staff caring for the elderly and vulnerable and looked at for NHS staff. This move follows a consultation by the Department of Health and Social Care (DHSC) launched in April amidst concerns raised by figures showing there have been over 40,000 deaths in care homes due to COVID-19 and a low uptake of the vaccine amongst care home staff.
International Trade Secretary Liz Truss has told the BBC that the government’s announcement of its decision on mandatory vaccination for care home staff was “very imminent.”
Care staff are expected to be given 16 weeks to have the jab – or face being redeployed away from frontline care or losing their jobs where re deployment is not possible, Staff who can prove they are medically exempt from having the vaccine will not be affected.
According to the reports, the government will commence consultation today (Wednesday 16 June) requiring vaccination as a condition of employment for all NHShealth service workers in an attempt to reduce transmission in hospitals.
Reaction to the Government’s planned move
A number of groups involved in the care sector have raised serious concerns that making vaccination a condition of employment may cause problems for a sector already struggling to recruit and retain staff, making chronic staff shortages even worse.
Many organisations involved in the care sector such as the Independent Care Group (ICG) and Age UK, have advocated an approach involving persuasion on a one to one basis, rather than coercion or compulsion, fearing that making vaccination a condition of employment may push staff away.
These concerns have been echoed by the GMB. In a survey of about 1,000 of its carers, the GMB said, more than a third indicated they would quit their jobs if vaccines were mandated.
In terms of making vaccination mandatory for the wider health care sector the British Medical Association, has warned that any specific proposal for the compulsory requirement for all staff to be vaccinated against Covid-19 would raise “new ethical and legal implications.”
Legal questions raised by the government’s planned move
The government’s planned move does raise a number of important legal questions, in particular there may be tensions between making vaccination mandatory and protections employees current enjoy under the Equality Act 2010 and under European human rights laws.
Concerns have been raised by the care home sector that these tensions may leave care homes vulnerable to exposure to legal claims such as unfair dismissal and discrimination based on disability, maternity reasons, religion or belief.
We will need to wait for the government to formally announce their plan before being in a position to comment further.
The devil, as they say, is always in the detail.
Practical steps care homes ought to be taking in light of the Government’s announcement
With compulsory vaccination due to become a requirement for care home staff working with the elderly and vulnerable imminently and a relatively short 16 week period before implementation, care homes ought to be acting now and planning as a matter of urgency to make sure they are ready for implementation of the new rules.
Steps should include the following:
- Informing and consult their staff about the requirement for vaccination against COVID-19 on both a collective and individual basis.
- Discussing and addressing any anxieties and concerns raised by staff on a one to one basis and try to allay any concerns e.g. about the vaccine’s safety or ill-founded concerns that have been cited in the media about the impact of the vaccine on fertility. This is particularly important in a sector where employees are predominantly young and female.
- Any concerns raised based on disability, pregnancy or maternity reasons, religion or belief need to be looked at very careful given they may afford the employee protection against discrimination under the Equality Act 2010. Staff exempt from the vaccination requirement should be identified in particular so as to avoid claims of discrimination.
- Consider re deploying staff from front line roles still reluctant to be vaccinated. This is particularly important in the case of staff citing a medical reason for exemption from vaccination, mindful that they be protected under the Equality Act 2010 and an employer’s duty to make reasonable adjustments.
- Dismissal ought to be very much a last resort. Before taking any decision to dismiss legal advice ought to be taken. Whilst requiring an employee to be vaccinated where it is a legal requirement is highly likely to amount to a ‘reasonable management instruction’ justifying a refusal where there is no medical exemption as a fair reason to dismiss coming under the category of a dismissal for some other substantive reason (‘SOSR’), disciplinary procedures still need to be followed under the care home’s internal disciplinary and dismissal policy and in line with the ACAS code on disciplinary and dismissal procedures in order to avoid liabilities for unfair dismissal. Dismissal though, ought to be considered as very much a last resort. As a matter of best employment practice, it is far more preferable to sit down with employee and try and understand and allay any concerns and resolve them than adopt a ‘bull in the china shop’ approach which may risk claims.
NB. Whilst employees generally speaking need two years’ service to claim unfair dismissal, in the case of any dismissal linked to health and safety reasons (in this case the employee’s own health and safety) then there is no length of service requirement.
- Contracts of employment will need to be updated to reflect that vaccination is now a condition of employment. Once again amendment ought to be consulted on as a matter of best employment practice even though the requirement for vaccination is to become mandatory.
- Employment policies will also need to be updated, including Health and Safety, Vaccination and testing policies to reflect the vaccination requirement.
We are able to provide expert employment law advice and HR assistance to care homes facing the challenge of implementing the government’s mandatory vaccination requirement. Our focus is on working with you to achieving practical, commercial solutions aimed at ensuring you are able to continue to recruit and retain your best staff.
Get in touch with if you require help and assistance with implementing the government’s compulsory vaccination plan. We are currently offering a free 30 minute consultation to discuss these with you.
We will be providing a follow up to this announcement with information to help those in the care sector understand what it means for them as a business and also what it means for their relationship with their customers.