On June 16th, 2021, the then Secretary of State for Health, Matt Hancock, confirmed to Parliament that COVID-19 vaccinations are to become compulsory for staff in care homes in England. It is important to note that as the law stands today it is still not possible for an employer to require staff to have a Covid-19 vaccination. This article sets out the current position in respect of compulsory vaccinations and how things are likely to change in light of the UK Government’s recent announcement.
Q1. Can Employers require employees to get a Covid-19 vaccination?
At the present time, the only circumstances where it might be possible for employers to require employees to be vaccinated (or to impose disciplinary action for refusal) is where they are required to work in very small spaces which cannot be made Covid-Secure or where the employee cannot perform the role without having been vaccinated. An example of this is in the social care sector where employers may be justified in issuing reasonable instruction to employees to take the vaccine as a refusal to do so would put vulnerable people at risk.
The higher the risk a non-vaccinated person in the workplace presents to themselves and others, the more reasonable the requirement to have the
vaccination becomes. In any event, at this time, requiring an employee to be vaccinated will present employers with several Employment Law challenges regardless of whether an employer relies on a specific contractual obligation as their chosen route or on it being a ‘reasonable instruction’.
Q2. What are the risks for an employer requiring an employee to be vaccinated?
- Potential discrimination issues such as on the grounds of ‘disability’. Severe cases of fear of needles (trypanophobia) may constitute a disability as its consequences may cause dizziness, fainting or palpitations.
- ‘Age’ given the priority groups for the vaccine are determined mostly by age, there is a real risk of discriminating because of age so being able to objectively justify any detrimental treatment will be key.
- ‘Religion or philosophical belief’ – an employee may rely on their religion to argue that not taking a vaccine is part of their religious belief that should be protected. Others may argue that they cannot take a vaccine due to their ‘veganism’ belief, given that veganism is already a protected belief, this may be protected too.
- ‘Pregnancy and maternity discrimination’ – There is no known risk with giving inactivated virus or bacterial vaccines or toxoids during pregnancy or whilst breast-feeding however, the COVID-19 vaccines have not yet been tested in pregnancy. It is therefore advised that until more information is available, pregnant women should not routinely have these vaccines. However, a woman may choose to have COVID-19 vaccine in pregnancy following a discussion with her doctor or nurse.
- Potential breaches by the employer of its implied duty of trust and confidence could result in claims of constructive dismissal. In addition, there is also a human rights argument linked to the employee’s right to respect for private and family life.
- Personal data which may be collected with employee vaccination constitute special category personal data and will not be processed in line with GDPR and DPA 2018.In terms of legal basis for the collection of such data, a data protection impact assessment (DPIA) to assess if the processing is “necessary for the purposes of carrying out the obligations and exercising specific rights of the controller of the data subject in the field of employment” and” providing for appropriate safeguards for the fundamental rights and the interests of the data subject”. The DPIA will need to establish the appropriate lawful basis for the processing of such data, if justified, such as legitimate interest and/or legal obligation, bearing in mind the specific circumstances, nature of the employer’s business and sector.
What an employer decides to do in respect of the vaccination will largely depend upon workplace-specific considerations. A blanket requirement on an entire workforce to be vaccinated is likely to be unenforceable. In limited circumstances, there may be health and safety or other justifications to require a vaccination in respect to specified work and/or types of work. For example, it may be possible to justify requiring an employee to be vaccinated if their role requires them to travel abroad to countries which will only permit entry to individuals who have been vaccinated. Any employer considering this approach would need to identify and record its justification for doing so.
Employers also need to be careful to avoid inadvertent indirect discrimination in selecting roles where vaccinations are required. Any mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic. It is at least arguable that any vaccination requirement could put employees with one or more protected characteristics at a particular disadvantage: age, race, disability, sex, religion or belief, pregnancy or maternity could all be relevant here . However, an employer may be able to justify a vaccination policy that is ostensibly discriminatory against those with a particular protected characteristic if it can show that its policy can be objectively justified as a proportionate means of achieving a legitimate aim.
Q3. What can employers do if employees do not want or cannot have the vaccine?
There will be employees who are unable and unwilling to have the vaccine for a wide range of reasons. This may be because of a medical condition that prevents them from being vaccinated, it may be for religious reasons or for reasons of philosophical belief or they may have concerns about the safety or effectiveness of the vaccination.
Taking disciplinary action against an employee who refuses to a Covid-19 vaccination is likely to be very risky in most cases particularly where the refusal is connected to medical reasons and/or reasons of religion or philosophical belief. However, if a an employee who refuses to be vaccinated cannot be safely brought back to work to do their job and no reasonable alternatives are available then a fair dismissal may be achieved, although advice would need to be sought from Wirehouse. Such actions and dismissals will remain difficult to justify except in sectors where vaccination has been mandated by the government.
Q4. How do the UK Government propose to change the current position on vaccinations?
The Government intends to introduce compulsory vaccinations for care home staff by Statutory Regulation. The proposed legislation will mean that from October 2021, anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have 2 doses of a COVID-19 vaccine unless they have a medical exemption. Although, the legislation will take effect in October 21, staff will be given 16 weeks to change their position if they refuse to be vaccinated.
The government is proposing that the new requirement will apply to all workers deployed in a care home, whether employed directly by the care home or employed by an agency. Other individuals entering into a care home to do other work, e.g., tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new regulations.
The regulations will not apply to:
- Anyone who has a medical reason that means they cannot have a vaccination
- Family and friends visiting a care home resident
- Essential Care Givers
- Any person providing emergency assistance
- Anyone undertaking urgent maintenance work
- Any person under the age of 18.
The Government will also enter into consultation about extending compulsory vaccinations to NHS staff and whether or not to make COVID-19 and flu vaccination a condition of employment in health and care settings.
Q5. What does this Covid-19 vaccination proposal mean for employers?
While the proposed regulation will only mandate vaccinations for employees in certain settings, it will assist certain employers by providing a statutory framework to require mandatory vaccinations where reasonable attempts at persuasion have failed. It should provide a stronger defence to claims made by workers who have been redeployed or dismissed when they fail to be vaccinated as there will be a statutory reason for dismissal. Nonetheless, even where an employer can point to this statutory reason for dismissal, in order to fully defend discrimination and unfair dismissal claims they will still need to demonstrate:
- They have considered the reasons for a refusal to be vaccinated and, if the refusal is based on a protected characteristic, have also taken proper account of these reasons in each individual case; and
- they have undertaken a fair process before dismissal. This will involve considering alternatives to dismissal and could involve considering measures such as moving employees or varying their roles.
An employment tribunal will still consider whether dismissal by the employer was a proportionate response to the refusal to be vaccinated. Although the majority of care home residents have now been vaccinated, concerns remain about the impact of new variants and this will undoubtedly be a relevant factor in justifying ongoing mandatory vaccinations.
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