As news of the numbers of care home staff who refuse the vaccination hit the headlines, and news that supplies may be slowing the vaccination efforts, it is understandable that care home managers are looking at ways to ensure their staff have the vaccine.

Vaccination is a very sensitive issue for some people, and the starting point must be that there is no justification, and no law currently in place, to force individuals to be vaccinated. The relevant legislation is The Public Health (Control of Disease) Act 1984, which says that nobody should be forced to undergo mandatory medical treatment, including vaccinations. All vaccinations require informed and voluntary consent.

Individuals have protection under Human Rights and Equalities laws, and if employers were to insist on compulsory vaccinations, they may be faced with objections on many grounds.

Even where individuals are working with vulnerable people, for whom catching the virus could be devastating, there is currently no legal entitlement to force staff to be vaccinated.

As we know the NHS vaccination programme is being rolled out in a very specific order, depending on the vulnerabilities of individuals and the type of work they do. There is much discussion over certain careers being able to ‘jump the queue’, but for some people there may be a considerable wait before they are fully vaccinated under the current government scheme.

Frequently Asked Questions:

Why is the question so important to employers?

Employers are looking for reassurance and certainty. They are longing for the days when they can confidently say that their staff are not going to either become ill with the virus or infect others in the workplace, particularly in vulnerable environments such as care homes and medical facilities.

By insisting that all staff are vaccinated, employers may feel that they are on a quicker path to gaining that confidence, and they avoid employees refusing the vaccination and still attending work. They may be questioning who would be responsible if a member of staff refused the vaccination and then caused an outbreak at work.

It is important, however, to note that even large NHS medical facilities are not currently insisting all staff have the vaccine.

Why would my employees not want me to do all I can to ensure their health and wellbeing?

You are responsible for your employees’ health and wellbeing whilst at work, but that does not currently extend to making decisions on medical procedures on their behalf. Rightly or wrongly, there are people who strongly disagree with the vaccination programme, and will not see it that way.

It would be unethical to make assumptions that everyone should, or could, have the vaccine and would readily agree to it.

My customers/service users want me to protect them

Whilst it is understandable some people may only want service providers to enter their homes or care for their relatives when they are fully vaccinated, that reduces the employees who can carry out certain roles. By preventing unvaccinated staff from doing their job, or reducing their hours or salary, you may face claims of unfair treatment such as unlawful deduction of wages or discrimination.

Why is this relevant now?

Many people will have seen news articles referring to the decisions by a small number of companies, such as Pimlico Plumbers, to introduce vaccination requirements into their new contracts (note – ‘new contracts’ rather than existing contracts). The debate on this issue has highlighted very strong views on the topic with even government ministers weighing into the argument to suggest that making vaccination mandatory or issuing ‘vaccine passports’ may well be discriminatory.

What are the risks in insisting my staff are vaccinated?

There are many risks involved in insisting staff have a ‘medical procedure’, whether they want to or not, in order to keep their job.

Vaccinations may cause unexpected reactions and long term side-effects, so employers could face a potential personal injury claim if an employee is injured or becomes ill through their insistence. Also, there may be arguments of age discrimination if some employees have to wait longer than others to be vaccinated, and are treated less favourably than those who have been vaccinated.

There may be individuals who should not have the vaccination on medical grounds. This may include pregnant women (for whom less data may be available) and those with underlying health conditions which may be incompatible with the vaccine. Those people are likely to be protected under current discrimination legislation.

There are also concerns in some communities regarding the contents of the vaccination itself and whether that is an issue under religious or moral grounds, and these objections could be protected characteristics due to religious or philosophical belief.

Vaccination would allow us to reduce the prohibitive safety measures that we are currently required to put in place

Employers would still need to be consistent and treat all employees fairly, you could not treat those who were unable to be vaccinated differently than those who have been vaccinated without potentially opening yourself up to claims of discrimination.

Vaccinations will not allow employers to remove measures quickly, and they will still be required to provide safe systems of work, in line with Covid secure practices, as set out by the government and regulators. It will likely be some time before everyone is vaccinated and measures can be reduced.

What can employers do?

Employers can support staff in getting the vaccine, for example providing time off for appointments, but cannot currently force them to be vaccinated.

Internal communications surrounding the vaccine can be encouraging and help to give employees confidence that you support the scheme and encourage its use (be careful not to go as far as giving medical advice though). Highlight the benefits of the vaccination, but be prepared for questions to be raised, and remember that you may not always know the reasons someone refuses.

Can I add a new contractual clause or policy requiring vaccination for existing staff?

It is extremely likely that employees would object to their contracts being amended to include clauses of a sensitive nature such as this.  You would need to follow careful, and potentially lengthy, procedures when changing terms and conditions, involving either agreement, imposition of the new terms, or terminating and offering re-engagement on contracts containing the new terms. Imposing new terms, and terminating and re-engaging, both carry significant risks to an employer.

Whilst introducing a new policy may seem a simpler option, if the policy is contractual (which is not uncommon in the care sector) then you are faced with the same issues as above. Non-contractual policies are easier to amend or create but, as they are non-contractual, they will not be effective in creating an ‘obligation’ to be vaccinated.

What about ‘failure to follow a reasonable management instruction’?

There has been quite a lot of commentary about employers simply introducing a requirement or vaccination policy saying that all staff must be vaccinated and, if individuals then refuse vaccination, relying on this refusal as a ‘failure to follow a reasonable management instruction’ enabling the employer to bring disciplinary proceedings for misconduct and, potentially, dismiss the employee concerned.

Unless such requirements/policies are contractual (see above) then it may prove difficult to rely on these for the purposes of disciplinary action, particularly where they have been implemented without proper consultation and undertaking detailed risk assessments (and including appropriate provisions relating to ‘legitimate’ reasons for not being vaccinated).

Whilst it is tempting to think that the justification for having such a requirement/policy in a care setting is obvious to all, there are several counter-arguments which may well hold some water before an Employment Tribunal including:

• If the purpose is to prevent residents/other staff becoming infected, and those residents and other staff have been vaccinated, then it makes no practical difference if certain employees choose not to be vaccinated.
• The extent to which the vaccine is effective (whether this be in terms of reducing transmission/serious illness) is not absolutely clear – although early indications seem to be extremely positive. If it is entirely effective see the point above, if it is limited in effectiveness then there is little to be gained from making vaccination a requirement.
• Given that the government appear to have decided to allow residents one indoor visitor, and that the requirements of such a visit will be ‘testing’ and wearing PPE (but not vaccination) then there is a clear implication that regular testing and PPE are deemed sufficient precautions for those having contact with residents.

Can I arrange for all contracts for new staff to require vaccinations?

It should be possible to include provision within contracts for new starters that they are vaccinated. Practically, however, this will only impact upon a small number of staff in most settings and, given that vaccination is only available via the NHS according to the current tier system (and cannot be arranged privately) some new recruits may be unable to comply with such a requirement (unless you can arrange this for them). There remain issues with potential allegations that such requirements may be discriminatory and, from a practical point of view, given that the government appears to be shying away from providing ‘proof’ of vaccination, it may be difficult for new employees to properly document their vaccination status.

Are there any exceptions?

Where staff are required to travel overseas and need to be vaccinated in order to fly or pass through airport security, there may be practical exceptions. However, given the reduction in travel other than for very exceptional circumstances, that is unlikely to be a current need for most employers.

What else should employers be aware of?

On top of the risks outlined above, there may be data protection policy implications to consider. If you are keeping data that refers to vaccinations, you may need legal advice about how to correctly store and manage such sensitive medical data.

So where does that leave us?

Unless the government decides to make vaccination mandatory for everybody (or those in specific occupations) – which is extremely unlikely, then what you do will come down to your own appetite for risk. There is no ‘absolute’ answer and any action taken to ‘force’ employees to be vaccinated will involve an element of risk and the possibility of some sort of legal proceedings being brought against you.

The information given in this briefing note should not be taken as legal advice and, given that government guidance changes on an almost hourly basis, should only be regarded as current at the time it is written. We are happy to provide tailored advice to individual circumstances if you wish. Please contact us on 01202 786332 or email online.enquiries@LA-law.com.