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07th July 2022

Can employers require their care staff to be vaccinated?

Research shows that many employers plan to implement a no jab, no job policy over the next 12 months, but with the Government revoking these plans for health and social care in England earlier this year, can care providers still require staff to be vaccinated? Charlotte Carey, Solicitor at Napthens, reports.

In a case of history repeating itself, ACAS has conducted a survey and found that 1 in 5 employers plan to implement a ‘no jab no job’ policy in the year ahead for both new and existing staff.

Under current legislation there is no law which requires employees to be vaccinated. In 2021, it was decided that it would be a requirement for all care home , health and social care staff to be fully vaccinated otherwise they would not be able to continue to work in their current employment. It was widely reported that this resulted in approximately 60,000 workers being dismissed. However, this was revoked as of 15 March 2022. It now appears that many employers are considering introducing their own requirement to be vaccinated.

Can employers ‘require’ staff to be jabbed?

As the legal requirement to vaccinated was scrapped in March 2022, employers will no longer be able to rely on this if they wish to implement a vaccination requirement. 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 employees 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 following the Government’s reversal of the legal requirement for vaccination in the health, and social care and care home sectors arguably makes it harder for employers to justify mandatory vaccination.

When considering dismissal for refusal to be vaccinated, this is not a straightforward question. Any dismissal procedure must be handled fairly overall, including consideration of any alternative roles. Employees who work in admin roles or roles that can be conducted remotely would be in a weaker position and an instruction to vaccinate may not be considered reasonable. We have not yet seen the tribunal consider decisions on mandatory vaccination and it will certainly be interesting to understand what is considered reasonable in these circumstances.

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

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Napthens LLP

Employment Law Specialists

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