Caution over compulsory jabs for care sector

Authored by ARAG

Few would argue that the care sector was not among the hardest hit by the pandemic. The high numbers of deaths in care homes, not just among residents but also among staff, coupled with shortages of protective equipment and heightened recruitment challenges as the UK left the EU, all threatened to overwhelm the industry in 2020.

The vaccines that have rescued us from lockdowns and economic ruin have been as vital to care providers as almost any other sector, but they have also placed it at the sharp end of the compulsory vaccination debate.

In many ways, the legal position is a lot clearer for businesses operating in the care sector than other organisations trying to balance the needs and wishes of unvaccinated workers with those of the rest of their staff and the demands of the business.

From November 11th, anyone who works at a care home in England that is registered with the Care Quality Commission (CQC) who is not medically exempt, cannot legally enter the premises until they have received both doses of a Covid-19 vaccine.

The vast majority of care home staff welcomed vaccination and were among the priority groups offered jabs alongside residents early in 2021, but there is still a small minority who have not been vaccinated.

Those who have not already received a first dose will be unable to go into work on November 11th, given the 12-week interval between administering doses in the UK. Those employees who have declined vaccination, regardless of their reasons, leave the care home with little choice but to terminate their contracts.

The legal basis on which employers can dismiss staff in such circumstances was created by amendments to the 2008 Health and Social Care Act, passed in July. However, despite the clarity of the legal position, employers in care homes should still tread carefully and consider individual circumstances.

For example, some workers, especially school-leavers or young people entering the profession for the first time, may simply have missed the recent deadline to receive their first jab and be unable to schedule their second until after November 11. In such cases, it would be reasonable to allow staff to take holiday or unpaid leave until they are fully vaccinated or, if possible, temporarily redeploy them to a role away from the care setting, to comply.

Even for staff who have declined vaccination, it is important for employers to explain the implications of the new law in good time. ARAG’s legal advisors have been recommending that care homes hold and document mandatory question and answer sessions to brief staff, explain the reasons and consequences of the law and answer any questions that workers may have.

As always, the individual circumstances of each case will vary enormously, so employers should still seek legal advice on any specific questions they may encounter, especially before taking disciplinary action or dismissing an employee.

While the proportion of workers declining vaccination may be very small, in a sector that employs more than a million people it seems almost inevitable that employment tribunal cases will result. However, tribunals are likely to be sympathetic to employers given the legal compulsion upon them and the importance of the vaccination programme to the national wellbeing.