Compulsory Vaccinations for Care Home WorkersLexLeyton
On 16th June 2021 the Department of Health and Social Care gave a press release which stated that: ‘Everyone working in care homes to be fully vaccinated under new law to protect residents.’
This did not seem like anything particularly surprising; some of those most at risk of being seriously unwell from Covid-19 live in care homes after all, with the likelihood of needing hospital care increasing exponentially depending on the patient’s age.
The vaccine has been seen by many as an overwhelmingly positive thing. While it is not a guarantee that a person will not become infected with Covid-19 there is anecdotal evidence everywhere you look that those who become infected with Covid-19 after being vaccinated tend to suffer much less serious symptoms. Indeed, it is reported that both the AstraZeneca and Pfizer vaccinations reduce hospitalization rates by up to 96%.
That notwithstanding, some choose not to be vaccinated. The reasons for this are varied and multiple. While some decisions not to take the vaccine are marred by conspiracy theorists on social media regarding microchips and magnetism, there are reasons which are more grounded in their logic. Some people may have a genuine moral/ philosophical belief against vaccination, some may choose not to be vaccinated due to religious reasons and some may not be vaccinated due to another medical condition.
While it is no surprise that the legislation details that all care home staff ought to be vaccinated; what is surprising is that there appear to be very few exemptions to being vaccinated. It seems that the only permissible justification for not being vaccinated for those working in a CQC registered care home is those who are exempt on medical grounds. The legislation does not take into consideration those who may not wish to be vaccinated for religious grounds or due to some other moral/ philosophical belief.
As a result of this it seems highly likely that this new legislation may well be subject to challenge. There is a notable difficulty here in that while refusal to comply with the obligation to be vaccinated may well give grounds to fairly dismiss an employee i.e. due to their continued employment contravening a duty or restriction imposed by statute, the legislations itself seems incompatible with the Equality Act 2010 and the European Charter of Human Rights (as enshrined in the Human Rights Act 1998), Article 9 (freedom of thought, belief and religion).
When making considerations regarding potential discrimination issues on an employment law context, we will normally consider if placing one group at a disadvantage is a ‘proportionate means of achieving a legitimate aim.’ In this instance, that may be not allowing people with a certain religious, moral or philosophical belief from working in care in order to protect those who are highly vulnerable. However, given that vaccinations do not absolutely prevent transmission and appear (at least in the case of Covid-19) to instead be more effective in terms of preventing hospitalisation, there may be some questions over whether or not this can be truly regarded as a ‘proportionate means.’
For employers in the care sector, having clear vaccination policies in place is a good start. However, if you do have employees who are unvaccinated, rather than moving straight to dismissal, it would be sensible to consider if they could work from home or to conduct a risk assessment and look at any other alternatives to dismissal particularly for those with long-service or those whose vaccine status pertains to a protected characteristic such as religion or belief. That being said, with this new legislation due to come into force from November this year, it is likely that those in the care sector with employees who refuse to be vaccinated will be best placed to defend any unfair dismissal/ discrimination claim on these grounds.
Those in other sectors could also consider introducing mandatory vaccinations – however, in the absence of specific legislation saying employees must be vaccinated, as we appear to have with the care sector, a discrimination claim may prove more difficult to defend.
It will be interesting to see if the Government seek to amend this legislation given its apparent incompatibility with ECHR and the Equality Act. If the Government fail to do so it could be viewed as setting something of a worrying precedent. While protecting those most vulnerable from Covid-19 is certainly a noble cause, we must question the idea of mandatory vaccination with exemptions for only those who absolutely cannot be vaccinated due to allergies etc. Undoubtedly we may well see this issue addressed in the Courts and the Employment Tribunal once the legislation comes into force on 11th November this year.
If your business would be assisted by a free consultation with one of our expert employment law team around the issues discussed here, don’t hesitate to contact us at email@example.com