On 22 July 2021, following parliamentary approval, legislation was made which will require those working in Care Quality Commission registered care homes in England to be fully vaccinated against COVID-19.
The pandemic has presented unique challenges which have elicited unprecedented responses from government, such as the furlough scheme. The legislation is another such unprecedented response to COVID-19. The legislation is intended to make care homes safer, but poses fresh challenges for care sector providers and staff, as well as raising many questions. The change is going to be implemented through an amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The new legislation will not come into force until 11 November 2021, to allow the care sector time to comply.
Is it a likely effect of the regulatory amendment that employers in the care sector will be free to terminate the employment of staff who can’t demonstrate the required evidence of double-vaccination?
The short answer is no. While the new legislation will provide a legal basis for employers to make double-vaccination a pre-requisite of continued employment within the confines of care homes (with some exemptions), it is unlikely that employers will be given free rein to dismiss unvaccinated employees without due regard to the existing employment and discrimination law.
Each case will require to be considered individually to ensure that any subsequent dismissal is not unfair or discriminatory.
What should care home operators do in the meantime, before the regulatory amendment comes into force?
In preparation for the changes, care home operators should create staff vaccination policies. ACAS sensibly suggests communicating and working with staff and any relevant trade union to discuss what measures to take in relation to vaccines.
It would also be sensible to audit any vaccination gaps, while taking care to process any data relating to vaccination in line with data protection requirements, so that employers can start to discuss the issue with any unvaccinated employees. This will also help to identify any potential staffing shortages, which could result from any future dismissals.
What concerns do employers in the care sector have (e.g. recruitment and retention)?
Staff shortages are a concern. In recent years, recruitment difficulties have been exacerbated by Brexit. The vaccine requirement may make recruitment and retention of staff more difficult, as those who are hesitant about vaccination may be put off from working in the care sector.
Currently, no vaccinations are required for care sector employment (though certain healthcare workers are required to be vaccinated for Hepatitis B). The legislation, therefore, is a significant change. There is concern as to how employers can police this requirement and what proof employees will need to provide.
Could an employer in another work sector lawfully make double-vaccination a condition of being employed, or continuing to be employed?
Any employer that imposes a blanket stipulation that staff be vaccinated as a requirement of continued employment, risks claims for unfair dismissal and unlawful discrimination.
Employees may have religious or philosophical beliefs that mean they object to being vaccinated, or may be unable to be vaccinated due to medical conditions, any of which may be protected characteristics under the Equality Act.
Any employer contemplating introducing a policy that required employees to be vaccinated would have to consider carefully why vaccination was a necessary requirement for each employee to fulfil their role, and whether there were other ways to deal with this rather than dismissal. Each case would again require to be considered individually and carefully.
Sectors where legislation mandates vaccinations, as in care homes, would be best placed to defend claims brought by employees.
Would there have to be exemptions from the requirement in order for it to be lawful (e.g. to avoid discrimination claims) and, if so, who would have to be exempted?
There is an exemption under the legislation for individuals for whom vaccination is not clinically appropriate. Other exemptions are for those entering care homes to assist with urgent maintenance work, members of the emergency services and those under the age of 18. There is no exemption for those who refuse vaccination on religious grounds.
Would a failure by an employee to comply with the requirement justify dismissal?
While it is potentially a fair reason to dismiss an employee if their continued employment contravenes a duty or restriction imposed by statute, any such dismissal also requires to be "fair" having regard to, among other things, "equity and the substantial merits of the case" (s. 98(4) ERA 1996). Dismissal on the basis of non-vaccination may be challenged by employees with more than two years' service, as being unfair if there were other steps the employer reasonably could have taken that would have avoided the need to dismiss, or if the process to dismiss the employee was unfair (e.g. non-compliant with the ACAS code of practice).
Employers should introduce vaccine policies, in which the consequences for failing to get vaccinated are documented. Staff that refuse vaccination should be dealt with in accordance with the employer's vaccine and disciplinary policies and procedures. Suspension without pay would rarely be appropriate, and only where there was a specific contractual right to do so.
If this requirement was introduced in other sectors outside the care sector, would it be likely to lead to worker shortages and, if so, which sectors might be most vulnerable?
Sectors that already suffer from staff shortages, such as nursing, would likely be most affected by making vaccination mandatory.
There is already evidence of staff shortages across the hospitality sector, which has a predominantly younger workforce. Research from the ONS found that a perceived lack of risk from catching COVID-19 was one of the main reasons for vaccine hesitancy and was particularly prevalent amongst young people. A vaccination requirement could increase shortages in hospitality and similar workforces.
What other steps might an employer take?
Alternative measures to making vaccines mandatory include encouraging unvaccinated staff to work from home, particularly when there is a local or workplace outbreak of COVID-19. Where staff work with medically vulnerable people, e.g. GP surgeries or home care services, employers should undertake separate risk assessments for unvaccinated staff.
In Scotland, payments from the Social Care Staff Support Fund were introduced to protect care workers' normal pay during any COVID-19 related sick leave in order to encourage reporting of symptoms and self-isolation, by reducing the financial detriment associated with time off work.
ACAS recommends that employers encourage staff to be vaccinated without making it mandatory. Support could take the form of offering paid time off to go to vaccination appointments, or offering paid time off if employees suffer side-effects.
Co-written by Rhona Wallace
Legal Director, Employment