Can care providers make vaccination compulsory?
Pimlico Plumbers made the news by confirming its intention to make it a contractual obligation for new starters to have the Covid-19 vaccine, and to change its existing contracts to include the obligation for existing staff members.
Is it lawful for providers that care for vulnerable people to make vaccination compulsory? Whilst this remains to be tested by the courts and tribunals, this is our view of the main legal issues and risks.
Where employees refuse the vaccine for a reason relating to a protected characteristic under the Equality Act 2010 (such as pregnancy, disability, religion, and certain beliefs), trying to enforce it may give rise to claims for discrimination. The success of any claim will generally depend on whether the employer can objectively justify its vaccination requirement; is it a proportionate means of achieving a legitimate aim? This will depend on the circumstances, including the role and the work it requires.
Subject to the potential for discrimination, employers can require new recruits to be vaccinated. The employer should make it clear in any job offers, contracts and recruitment communications that it will consider modifying its vaccination requirement to cater for those who refuse because of a protected characteristic. A blanket policy without such flexibility built in would be inadvisable.
Employers must also remember that is unlawful to ask a job applicant about their health before making a job offer, unless the law allows an exception. We believe the exceptions are unlikely to apply to asking about vaccination status, and so that question should be left until an offer has been made.
Contractual issues and dismissal
Making vaccination a condition of employment for existing employees is likely to require consent to change their terms and conditions. If employees refuse consent, care providers may need to consider dismissing and offering re-engagement on new terms, including a requirement to be vaccinated. This carries the risk of unfair dismissal for those with the necessary length of service and, if the refusal relates to a protected characteristic, discrimination claims.
Where it is proposed to dismiss more than 19 employees, the requirement to collectively consult under the Trade Union and Labour Relations (Consolidation) Act 1992 is likely to apply. There may also be a requirement to negotiate with any recognised trade union under a collective bargaining agreement.
Theoretically, employees that have the vaccination in response to their employer's requirement and then suffer adverse effects may be able to make a personal injury claim against their employer, although the prospects of success are unclear.
And the answer is…
Care providers must weigh the benefits and risks of mandatory vaccinations. This includes the health and safety, reputational and productivity benefits of a vaccinated workforce, against the risk of legal claims. Whilst we believe that tribunals are likely to be more sympathetic to care sector employers that mandate vaccination for their front-line staff members, those employers still need to carefully assess the risk to their operations to decide whether vaccination is necessary, what alternative measures can be taken to ensure suitable health and safety and the reasons for any refusals. Employers should also adopt a fair process when taking disciplinary action.
The Department of Health and Social Care launched a five-week consultation on proposals to require staff in older adult care settings to have a Covid-19 vaccine as part of their conditions of employment. This would mean care home providers would only be able to deploy staff who have been vaccinated – unless they are exempt for medical reasons. The consultation period ends on 21st May. If this proposal becomes law, care sector employers will have a stronger hand when dealing with those who have refused the vaccine, unless they are exempt. We will be watching this space.
This area is difficult and employers should seek legal advice, particularly given the importance and complexity of the issues, including the need to operate in a world with Covid-19 and their obligations to safeguard service users, staff members and visitors.
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