All adult care home staff and volunteers must now be fully vaccinated against COVID-19, excluding those who are medically exempt. This includes front line care staff and also hairdressers, tradespeople, beauticians and CQC inspectors visiting the care home.
It is unlawful for CQC regulated care homes to employ staff who are not vaccinated against COVID-19 unless they are medically exempt. Care homes will need to include the vaccination requirement in their recruitment policies and job advertisements and ensure that managers are trained to understand any medical exemptions during the recruitment process.
In addition to care home staff, the Government recently announced that vaccination against COVID-19 will also become mandatory for health and social care workers in England who have face-to-face contact with patients unless they are medically exempt. This requirement will apply to doctors, nurses, and dentists who are directly involved in patient care, and to staff such as porters, receptionists and cleaners who may have contact with patients in the course of their work.
From 1 April 2022, it will be unlawful for CQC regulated providers in health and social care in England to employ staff who have direct patient contact and who are unvaccinated, except those who are medically exempt. The NHS says that unvaccinated staff will need to have had their first dose of the COVID-19 vaccine by 3 February 2022 because the current advice is that vaccines should be given 8 weeks apart.
The Government have said that ensuring the maximum number of NHS staff are vaccinated will help ensure the most vulnerable patients gain the greatest possible levels of protection against infection. Elderly people, those with disabilities, and some seriously ill people in hospital face a higher risk from COVID-19 than the wider population, and are more likely to use health and care services more often. They say the measures will also protect workers, which is important for hospital trusts where extensive unexpected absences can put added pressure on already hardworking clinicians providing patient care.
Care and health workers
It is likely that employers will be able to legally terminate the employment of staff who refuse to be vaccinated where it is required by law (applicable care and health staff). This is because the employer will be able to rely on the potentially fair reason of “the employee could not continue to work in the position which they held without contravention of a duty or restriction imposed by or under an enactment” set out in section 98(2)(d) of the Employment Rights Act 1996.
However, as well as relying on this potentially fair reason, an employer must also follow a fair procedure before making the decision to dismiss. They will need to check whether the individual is medically exempt, whether there are any other jobs not subject to compulsory vaccination that they could carry out as an alternative to dismissal and whether the individual has been given a fair chance to be vaccinated.
Workers in other sectors
This position does not apply to other sectors as there is no legal requirement for other workers to be vaccinated.
Employees with two years’ service have the right not be unfairly dismissed by their employer. An employer will need to have a fair reason and follow a fair process to fairly dismiss. It is likely that the employer would need to show an Employment Tribunal that it was essential for the individual to be vaccinated to carry out their role.
There may be other potential claims without an employee having two years’ service. For example, a claim of automatic unfair dismissal where an individual might raise a health and safety reason for declining to have the vaccination and/or disability discrimination if the individual has a health condition which puts them at risk if they were to have the vaccination and they decline to have it on that basis.
If you require advice on any situation at work or any potential claims against your employer, please contact our experienced employment law specialists at Farleys on 0845 287 0939 or by email today.