Can employers require their care staff to be vaccinated? | QCS

Can employers require their care staff to be vaccinated?

Dementia Care
September 13, 2022

The government continues to urge employers in the UK to encourage their employees to get vaccinated against COVID-19. The government message remains that organisations can play a vital role in helping to promote vaccination as part of their responsibility to help reduce workplace risk.

Employers can help their team make well informed decisions and encourage as many people as possible to get the COVID-19 vaccine, but how far should this encouragement go?

Can employers ‘require’ staff to be jabbed?

There is currently no legal requirement for employees to be vaccinated. So, this begs the question; can employers require employees to be vaccinated? Where employees are working in a health and social care setting whether that be a care home or providing care in the community, arguably the risk associated with contracting and spreading COVID-19 is increased, given there is both contact with an increased number of people and increased contact with vulnerable people.

Encourage vaccination

If an employer considers that it is important for staff to be vaccinated, then there are various steps that the employer can take to implement this policy. Vaccinations are likely to be a difficult subject with employees and some may have strong opinions regarding getting vaccinated. It would be better for employees to agree to be vaccinated so employers should, in the first instance, encourage employees to be vaccinated and publicise the benefits to improve take up of the vaccine and boosters. This can be done by explaining and encouraging employees with impartial, factual information.

What if staff cannot have the vaccine?

Consideration will need to be given to those employees who may not be able to have the vaccine. This could be due to a medical condition, or it may be that these people could be protected by the disability provisions within the Equality Act 2010 if they refuse the vaccine. Where there are health and safety concerns regarding those who cannot have the vaccination, employers should consider alternative means of risk management such as regular testing, facilitating remote working or alternative roles.

Hard for employers to justify mandatory vaccination

There are many concerns regarding mandatory vaccinations and given that there is no legal requirement for vaccination in the health, and social care and care home sectors where the risk is highest (as this was scrapped by the Government in March 2022), this arguably makes it very difficult for employers to justify mandatory vaccination.

A mandatory vaccination policy must be justified as a proportionate means of achieving a legitimate aim. Employers may find it difficult to justify that the legitimate aim is based on health and safety grounds in the wake of the pandemic, as the virus is not as prevalent. We now understand that vaccination reduces the chance of the vaccinated individual contracting and transmitting COVID-19 to others, but not to negligible levels.

Proportionality may be a more difficult hurdle for employers at the current time, given that there are more effective and less discriminatory means of achieving a health and safety legitimate aim, such as remote working, as highlighted above.

Dismissal for refusal

In January 2022, an employment tribunal held, in the case of Allette v Scarsdale Grange Nursing Home Ltd, that the summary dismissal of a care assistant working in a nursing home who refused to be vaccinated against COVID-19 was not unfair. Given the nature of the employee’s job, the employee had failed to follow reasonable management instruction when she refused to be vaccinated. As such, the dismissal fell in the range of reasonable responses. The process that the employer followed was fair.

It is worth stressing that the tribunal considered that in all of the circumstances, in particular the state of the pandemic nationally at the time, the consequences of a recent outbreak at that nursing home, and the advice from PHE and MHRA with regard to the virus and vaccination, the employer’s decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. It is perhaps unlikely that a tribunal would reach the same conclusion today, given that we are no longer in the pandemic.

The tribunal emphasised that this case turned on its own facts. Whilst the tribunal found that the claimant’s refusal to comply with the management instruction to be vaccinated amounted to gross misconduct on the facts of this case, it did not mean that the tribunal would come to the same conclusion in another case on different facts. It further stressed that the finding of a fair dismissal in this case was not a general indication that dismissal for refusing to be vaccinated against COVID-19 will be fair in other cases.

Therefore, if considering dismissal for refusal to be vaccinated, this is not a straightforward question and advice should be taken.

If you have any queries or need specific advice in relation to any employment law query, please contact a member of the AfterAthena employment team who are able to offer 30 minutes of free advice to QCS members.