Is a requirement to be vaccinated still an option for the care sector?

With regulations imposing mandatory vaccination for certain workers in the care sector being implemented to those same regulations being revoked some four months later, employers in this sector may well be confused as to what options are available to them.

A brief history

On 11 November 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) regulations 2021 came into force, introducing a statutory requirement for all care home workers and other visiting professionals in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated against COVID-19.

This legislation meant that the registered managers of CQC care homes were responsible for ensuring that any individuals entering the premises to work or provide services had proof that they had been fully vaccinated against COVID-19 unless they were medically exempt. Any members of staff who were not fully vaccinated were therefore at risk of being dismissed if no alternative suitable role was available for them that did not require them to be fully vaccinated.

Following on from these regulations, mandatory vaccination requirements were also due to be extended to all patient-facing staff in the health and care sector in England from 1 April 2022. However, following concern over the stability of the health and social care sector, the government launched a consultation on whether to end Vaccination as a Condition of Deployment (VCD). In view of the response to the consultation, the government made a dramatic u-turn by revoking the mandatory vaccination regulations on 15 March 2022 and pressing pause on extending these requirements any further.

What does this mean for employers?

The government’s u-turn has placed a significant strain on care home resources. Care providers will have to commit time and expense to dealing with complaints, claims and grievances from dismissed and current employees who oppose mandatory vaccination.

Whilst those employees who were dismissed during the period that the regulations were in force will not automatically be successful in bringing a claim for unfair dismissal and/or unlawful discrimination under the Equality Act 2010, or be entitled to reinstatement to their previous role, nevertheless, there is an increased risk of such claims being brought against an employer.

Such employers will also have to decide on the approach they want to take going forwards in relation to the vaccination of staff, as well as deciding whether to continue or discontinue any ongoing processes relating to the potential dismissal of unvaccinated employees.

The revoking of the regulations does not mean that a care provider employer cannot dismiss staff who are not fully vaccinated or exclusively recruit those who are. Instead, the employer will need to carefully consider what approach to take in respect of particular patient-facing roles, bearing in mind the risk to the patients in its care as well as the rights of the employee.

Recent Case Law

Prior to the compulsory vaccination regulations coming into force, it was found by the employment tribunal in Allette v Scarsdale Grange Nursing Home Ltd [2021] that dismissing a care home assistant who unreasonably refused to be vaccinated against COVID-19, was a failure to comply with a reasonable management instruction and that dismissal on the grounds of gross misconduct was fair in the circumstances of that case.

In particular, the care home’s insurers had informed them that it was a condition of their public liability insurance for Covid-related risks for staff to be vaccinated, and that they would face the risk of liability if an unvaccinated member of staff were found to have passed the disease on to a resident or visitor.

The tribunal considered that it was a social necessity for all employees to be vaccinated, due to the recent outbreak and deaths from COVID-19 within the care home, together with the impending insurance cover withdrawal. The right to a private life under Article 8 of the European Charter of Human Rights was considered by the employment tribunal and balanced between that of the residents and that of the employee. Given the nature of the business and vulnerability of its residents, the interference with Ms Allette’s private life was deemed proportionate.

Although this decision by the employment tribunal is encouraging for care home operators looking to dismiss employees refusing vaccination without a valid form of exemption, it was emphasised by the tribunal that each case would turn on its own facts. This means that, should an organisation wish to continue to operate a mandatory vaccination policy, it must demonstrate the reasonableness for such a policy, for example as a means of protecting the health and safety of its vulnerable residents.

Next steps for employers

Due to working with some of the most vulnerable people in our society, care providers may still be able to justify vaccination as a precondition of employment on the grounds of health and safety.

If care providers wish to continue to impose a mandatory vaccination requirement for patient-facing employees, they should:

• Undertake a detailed risk assessment with a view to establishing why employees should be fully vaccinated in addition to following any other public health measures.
• Consult with workplace representatives or trade unions.
• Consider whether mandatory vaccination is a proportionate way to address health and safety risks, keeping in mind their duty to protect employee rights in the workplace.
• Consider alternatives to dismissal where possible. This could involve measures such as hybrid working where possible or temporarily changing an employee’s role.

Additionally, for any ongoing complaints, claims or grievances from previously dismissed or current employees, employers should consider whether they can implement any appropriate alternatives to reduce the risk, time and expense of continuing with any formal legal procedure or complaint/grievance processes.