Compulsory Vaccinations in Care Homes – Considerations for Employers

From 11 November 2021 care home workers in England must provide evidence of vaccination against Covid-19 unless they are exempt. In this article we consider the implications of the new rules, including the risk of unfair dismissal and discrimination claims which may arise from dismissing an unvaccinated employee.

The Regulations

On 11 November 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulation 2021[1] came into force. This has an unprecedented impact on individuals working in Care Quality Commission (“CQC”) registered care homes in England as they now have to provide their employer with evidence that they have been vaccinated against coronavirus unless there are clinical reasons deeming them exempt. Despite the Regulations applying to both England and Wales, this requirement applies to England only.

As well as employees, the Regulations extend to students entering the care home as part of their studies, volunteers, staff travelling from non-care settings who enter the care home as part of their professional responsibilities (such as hairdressers and tradespeople), job applicants and agency workers.

According to the Government, the implementation of compulsory vaccinations in care homes is to “ensure that care homes are as safe as possible for the staff working in them and the people they care for." The Government believes that "the best way to do this is to ensure that everyone who can take up the offer of vaccination, does.[2]”

Exemptions

The possible exemptions from having the compulsory vaccination are limited. Examples given in the guidance include[3]:

• People receiving end of life care where vaccination is not in the person’s best interests;
• People with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments;
• A person with severe allergies to all currently available vaccines;
• Those who have had an adverse reaction to the first dose; and
• Other possible medical conditions (although the guidance does not set out what those possible conditions are).

How does this requirement sit with the Equality Act 2010 (“EqA”)?

Prior to the implementation of the Regulations, there was a lot of debate on how they would link with the EqA. For example, will an employer be at risk of a claim from those employees who argue that they would be discriminated against (whether directly or indirectly) by being forced to have the vaccine or who are dismissed because they refuse to be vaccinated?

The new guidance which accompanies the Regulations confirms that an exception in the EqA will apply meaning that it will not be unlawful discrimination in relation to age, disability, religion, or belief for a care home to ensure that a person over 18 who has not been vaccinated and is not medically exempt, does not enter the care home.  

This means that if the care home needs to dismiss those staff or redeploy them in order to comply with the Regulations, they should be able to do so provided they select the relevant staff in a fair and non-discriminatory manner.

The guidance explains that this exception wouldn’t apply where an employer chose to dismiss only disabled staff who weren’t vaccinated. This is because the Regulations don’t require the care home to choose to dismiss only disabled staff.  However, where (for example) a care home dismisses all staff who are unvaccinated and without a medical exemption, and it turns out that most of those dismissed are disabled, there may be scope for them to bring a claim under the EqA for indirect disability discrimination.  To defend such a claim, the care home would have to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. Compliance with the Regulations should serve as the legitimate aim, so the key will be proportionality and so employers will have to consider less discriminatory ways of achieving compliance, including redeploying staff into roles which do not require vaccination (e.g. in head office).  However, as long as a care home cannot take other reasonable steps to avoid dismissing staff (for example, redeployment), it is likely to be able to show that any dismissal is a proportionate means of achieving a legitimate aim and, therefore, not discriminatory.

That does not mean that dismissal or deployment is otherwise free from discrimination risk. For example, if a care home chooses to dismiss staff for discriminatory reasons under the guise of complying with the Regulations, it would not be able to claim the benefit of this exception. Equally, if redeployment decisions are taken for reasons which are directly or indirectly discriminatory, the exception will not apply.  For example, if the ability to work on Sundays is used as a criterion for prioritisation for redeployment of unvaccinated employees, this may be indirectly discriminatory on the grounds of religion or belief and so would need to be justified as a proportionate means of achieving a legitimate aim.

Other implications that need to be considered

There are a number of other implications that care home employers must consider now the compulsory vaccination is in force for its employees:

• There is a possibility that an employee could provide false information that they have been vaccinated, although unlikely given the NHS Covid Pass has been implemented. This could result in disciplinary action due to the false information. However, not being vaccinated or being medically exempt would not in itself amount to misconduct;
• If an employee is refusing to have the vaccination, an employer can consider:
  • allowing them to take leave (although this may only be considered appropriate where a worker demonstrates intent to get fully vaccinated but has not yet completed the full course) and/or
  • redeployment into an alternative role where having the vaccination is not required, for example head office.
• If an employer has considered redeployment, leave etc. and there are no other options, an employer may be entitled to dismiss an employee for refusing to have the vaccination. If an employee has over two years’ service, there is a real likelihood that they would bring an unfair dismissal claim in the Employment Tribunal. However, providing they follow a fair process in reaching the decision to dismiss, care home employers are likely be able to justify dismissal as a fair reason on the basis that (i) the employee could not continue to work in the position held without either the employer or the employee contravening a duty or restriction imposed by or under an enactment (known as statutory restriction); or (ii) some other substantial reason of a kind such as to justify dismissal (known as SOSR). A fair procedure must be followed by an employer in reaching the decision to dismiss with the usual aspects of giving notice, holding a meeting to allow the employee to make representations, allowing the employee to be accompanied to the meeting, considering the outcome and allowing a right of appeal. In addition, the employer must have considered alternatives to dismissal such as redeployment;
• The compulsory vaccination requirement could impact staff morale and employee relations generally. The biggest issue is likely to be staffing levels and retention pressures, particularly heading into the winter period which is a challenging time of year in care homes. Care home employers should have contingency plans in place to manage any staffing issues. If the care home has concerns that staffing levels affect their ability to operate the service safely, they are required to notify CQC under Regulation 18(2)(g) of the Care Quality Commission (Registration) Regulations 2009;
• Employment contracts may need to be updated to reflect the legal requirement for compulsory vaccinations;
• Employers must have regard to data protection – care homes must keep records to demonstrate compliance with the Regulations and ensure that this is in accordance with data protection legislation. All care homes should have existing data processing policies as part of their pre-existing data protection obligations, for example around privacy information. All existing data protection and privacy documentation and assessments should be reviewed and updated to ensure compliance with the regulations.

Employers who ignore their responsibilities under the Regulations face enforcement by the CQC. In addition, employers who ignore their health and safety obligations risk claims, such as for personal injury. They could also face unfair dismissal and/or whistleblowing claims from other employees who refuse to come into work because they reasonably believe they are in serious and imminent danger.

Booster vaccinations are not currently referred to in the Regulations. However, the government guidance advises managers to encourage workers to take up booster vaccines if eligible[4], and a provision for booster vaccines may be added to the Regulations in the future.