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Your questions answered: The Government's possible U-turn on mandatory vaccines for health & social care workers

02/02/2022

Author: Dionne Dury

Employment

Covid 19 Vaccines

Covid 19 vaccinations

1. Can I lawfully ask employees to be fully vaccinated?

    Yes. However, it currently depends on the type of work you do and the requirements of employees’ roles and whether such work has face-to-face contact with people and/or is seen to be a high-risk working environment.

    From 15 November 2021 legislation was brought in which made it mandatory for all adult care home staff and volunteers to be fully vaccinated against coronavirus excluding those who are medically exempt. It is currently unlawful for a CQC registered care home to employ staff that are not fully vaccinated which includes front line staff and tradespeople visiting the care home e.g. hairdressers, beauticians and CQC staff. It does not apply to friends or relatives who are visiting the home or those entering to assist with an emergency or carrying out urgent maintenance work.

    From 1 April 2022 new legislation was due to come in making it unlawful for CQC regulated providers in the health and social care sector in England to employ unvaccinated staff who have direct face-to-face contact with patients unless they are medically exempt. This would apply to doctors, nurses, dentists and ancillary staff e.g. hospital porters, receptionists and cleaners who may have contact with patients in the course of their work.

    Newly hired staff could be deployed if they had received a single dose at least 21 days before starting work although they would need to have had their second dose within 10 weeks of their first. Unvaccinated staff would need to have had their first dose of the vaccine by 3 February 2022.

    Breaking news this week is that the policy could be dropped as a result of high staff vacancies in the NHS and the less severe Omicron variant. A decision is likely to be made in the next few days, so the position for NHS staff is not yet confirmed. It is also unclear whether this will have any impact on those adult care home staff who lost their jobs at the end of 2021.

    2. Can I require my workforce to be vaccinated if I am not a health / social care provider?

    Yes, however, you need to exercise caution and carry out a thorough risk assessment to assess employees’ rights in order to minimise the risk of legal claims. You are more likely to be able to justify full vaccination in high-risk work environments such as where work involves close face-to-face contact with people or where the requirements of the role make it necessary for an employee to be fully vaccinated e.g where an employee frequently travels and requires proof of vaccination to enter another country.

    It is not unlawful to employ someone who is unvaccinated in any other sector than that of health and social care and a blanket policy applied to all staff requiring them to be fully vaccinated is likely to be unlawful and pose a significant risk of legal action as well as health and safety risks. You should also consider the negative publicity and low morale of your workforce if such blanket policies are applied.

    ACAS guidance is encouraging employers to support staff to be vaccinated without making it a mandatory requirement. Such support might include you paying staff to have time off to attend vaccination appointments and paying the usual rate of pay where staff are off sick as a result of vaccine-related side-effects.

    3. What if I work in the health/social care sector and I refuse to be vaccinated?

    As the position currently stands, if you work for a CQC regulated provider and you refuse to be vaccinated and you do not qualify for an exemption your employer will need to consult with you and consider re-deployment and/or explore if there is any way that your role could be altered to remove face-to-face patient contact. Alterations to your contract of employment might include remote working without access to frontline patient care, a reduction or change in working hours to remove face-to-face contact with patients or re-deployment / re-training into a different role.

    Your employer needs to fully consult with you about any proposed changes to your contract of employment. Requiring you to be vaccinated without obtaining your express agreement could amount to a repudiatory breach of contract, entitling you to claim constructive dismissal. Your employer might also be discriminating against you if you have a protected characteristic e.g. you have a disability, you are medically exempt, you are pregnant etc.

    If it is not possible to re-deploy you or make alterations to your role, your employer may be able to lawfully terminate your employment on the grounds that there is some other substantial reason so as to justify dismissal.

    4. What are the exemptions?

    i. Pregnant women

    Whilst the current government guidance is that the coronavirus vaccine is safe for pregnant women the government has announced that a MATB1 form stands as a medical exemption for pregnant women who prefer not to be vaccinated until 16 weeks following the birth of their child. Pregnant women who do not obtain a MATB1 until later in their pregnancy who would prefer to be unvaccinated are still likely to be medically exempt.

    Care homes and other high-risk sectors choosing to impose mandatory vaccines should be informing any pregnant staff of the MATB1 position now.

    Any action to treat an employee with a pregnancy-related medical exemption less favourably than a worker with a non-pregnancy related medical exemption will be unlawful and amount to discrimination.

    ii. Medically exempt

      Those who have self-certified as medically exempt from coronavirus vaccination before 24 December 2021 will now have until 31 March 2022 to secure formal proof of their medical exemption status via their GP.

      5. What are the legal risks of imposing mandatory vaccination in other sectors?

      Requiring employees to be vaccinated without obtaining their express agreement could amount to a repudiatory breach of contract, entitling them to pursue a claim for constructive dismissal. It could also be direct discrimination against certain employees with a protected characteristic. For example, the following protected characteristics could give rise to a potential discrimination claim:

      • Age – evidence suggests that younger workers are less likely to get vaccinated due to a lower risk of getting seriously ill / being hospitalised and the higher risk of blood clotting.
      • Disability – the vaccines might not be suitable for some individuals with certain medical conditions e.g. those with suppressed immune systems, severe allergies
      • Pregnancy or maternity – the government’s change in advice regarding pregnant women receiving the vaccination may have caused concern for pregnant employees or employees who are breastfeeding
      • Sex – women may decide to delay vaccination because of concerns that it might impact their fertility
      • Race – ethnic minority groups have been more hesitant to receive the vaccine
      • Religion or belief – workers with strong religious or philosophical beliefs may object to the vaccine on moral or religious grounds.


      6. Can I ask staff to confirm their vaccination status?

      Yes, however, there are data protection implications where employers require staff to confirm their vaccination status. As this would be classified as health information, it will amount to a special category of personal data, which is subject to stricter regulations under the GDPR. It must be necessary for employers to process the data. Employers need to have a legitimate interest for holding the information and a condition for processing, for example, to assess the working capacity of an employee, or to ensure a safe working environment. It will also be necessary for employers to update staff privacy notices.

      7. Can I lawfully dismiss an employee who refuses to be vaccinated?

      If the employee works in the health / social care sector, has face-to-face patient contact, and refuses to be vaccinated this is likely to amount to some other substantial reason (SOSR) so as to justify dismissal. It will still be necessary to carry out a fair process when affecting any dismissal, which would need to include consultation with the employee affected and consideration of alternatives to dismissal such as re-deployment into another role, re-training for another role or alterations to the contract of employment e.g. remote working or changes to working hours to avoid face-to-face patient contact.

      If the employee works in a different sector to health/social care, it will depend on the type of role that the employee carries out / whether it is a high-risk environment, as to whether you will be able to rely on SOSR as a potentially fair reason to dismiss. You will need to have evidence to show that you have carried out a thorough risk assessment of the requirements of the role and consulted with any individuals affected about the vaccination requirement and possible alternatives to dismissal, before taking any decision to terminate employment.

      8. What should I be doing as an employer?

      • All CQC regulated health and social care sectors, including the NHS should be consulting with their staff now to make sure that they understand their coronavirus vaccination status and encourage those who have not been vaccinated to do so and to consult with them regarding possible re-deployment or alterations to the contract of employment, should they be necessary.
      • All recruitment policies and job adverts need to provide details of any vaccination requirement, candidate privacy notices need to be updated and recruiting managers need to fully understand the medical exemptions available and potential discrimination risks of imposing a blanket policy for vaccination.
      • Employers in non-health / social care sectors should be carrying out risk assessments of employees’ duties and consulting with staff or any recognised staff associations/trade unions before introducing any Coronavirus Vaccination policy.

      If your business is affected by the legislation regarding compulsory vaccinations, you are a frontline health or social care worker or concerned about how these changes might affect you/your business, you can contact our employment law specialist, Dionne Dury on 01603 214 229 for further advice and assistance or email her at dionnedury@hatchbrenner.co.uk.

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