Jab or No Job? Care Home Staff and the Covid Vaccine

Year Published: 2021

Can care home staff be made to have the Covid vaccine?

The Government has put forward a proposal that from 1 October 2021, all people working in Care Quality Commission (CQC) registered care homes will need to be fully vaccinated against Covid-19. Warren Moores, Associate in the Employment Law team, investigates the potential impact of this decision on employers and employees.

Proposed Plans

The Government has said it is concerned for the safety of residents from both serious illness and death and believes this will better protect the residents in care home settings.

The proposal is that from 1 October 2021, care homes and providers (including agency providers) in England will have to make sure all people who provide nursing or personal care have had two doses of a Covid-19 vaccine unless medically exempt. This applies to employees, workers, volunteers and those employed through an agency. However, there would be a 16-week grace period meaning employers would have until 21 January 2022 to comply with the enforced change assuming it comes into effect on 1 October 2021.

Employment Law Implications

As this is likely to be a mandatory legal requirement, employers will have no choice but to comply with the law. This new legislation is currently subject to Parliamentary approval therefore the full rules around how it will work are not clear. It has been rumoured that staff who do not want the vaccination will face re-deployment where possible, otherwise could be dismissed.

There are five potentially fair reasons to dismiss an employee within the Employment Rights Act 1996 (redundancy, capability, conduct, some other substantial reason and breach of a statutory duty or restriction). Employees who are unable to be redeployed in the above circumstances are likely to face potential dismissal based on the ground of ‘breach of a statutory duty or restriction’. This covers situations where someone can no longer continue to work in the position which they held without the employer or employee contravening a statutory restriction. An example of this would be someone employed as a driver who loses his licence.

Employers should be mindful to follow a fair procedure involving discussions with the employee and the consideration of alternative options. If an employee is dismissed and has over two years’ service then that person can make an employment tribunal claim for unfair dismissal if they do not feel their dismissal was reasonable. A tribunal will look at all the circumstances surrounding the dismissal to determine whether the employer’s decision was reasonable or not.

Care Sector Implications

Care home staff look after those who are unable to care for themselves, therefore it is important residents remain protected. However, with the Government planning a full release on restrictions over the coming months, the timing of this new proposal does seem slightly odd. The majority of staff and residents are likely to be already vaccinated, but there will be some staff in care homes who have decided not to be vaccinated. The care sector has struggled with the recruitment of quality staff for many years and if care staff start to leave the sector, this could increase the pressure on care homes and in turn impact the quality of service they can deliver. Those individuals who do not wish to have the vaccine may feel they have no choice, given a possible alternative is that not only will they be dismissed, but they will then be unable to continue with their frontline career in care whilst this law remains in force.

Back in December 2020, I wrote an article entitled ‘Can Employers Make Staff Take the Vaccine?’. There were lots of difficulties around this for employers, not least the fact you may be forcing someone to undergo what could be considered a minor medical procedure when they may have concerns about its safety. At that time it was not envisaged that the Government would look to force care staff to have vaccinations and instead it was thought that the focus would continue to be on education and persuasion. However, mandatory sector requirements are now at proposal stage and the Government is consulting further on rolling out this proposal to the NHS. It will be interesting to see how this develops going forward.

If you are a care provider and would like some advice on how to prepare for the proposed changes, please get in touch.

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