Compulsory covid vaccinations in English care homes

In this long form article, Lisa Crivello explores the implications of the change in the law regarding mandatory vaccines in care homes.

On 11 November 2021, the Regulated Activities Amendment Regs 2021 come into effect. The regulations make it a legal requirement for all those working in (or even visiting) the premises of a care home situated in England to have completed an approved course of Covid vaccination, unless they are medically exempt (more to come on this).

The only exceptions are as follows:

• Residents and their visiting friends and family
• Someone providing support to a dying resident, or in relation to bereavement
• Those aged under 18, and
• Emergency workers or those carrying out urgent maintenance work.

The regulations were announced on 22 July, giving employers over 3 months to get their staff vaccinated. Staff must have had their first jab by 16 September in order to meet the 11 November deadline.

It’s important to note that these regulations cover everyone who comes into a care home, including those workers who are normally based in non-care settings — such as physical trainers or hairdressers. Government guidance is available here.

Who is medically exempt?

The Regulations provide that someone is exempt if for “clinical reasons [they] should not be vaccinated with any authorised vaccine”. At the time of publication the government’s ‘Operational Guidance’ on mandatory vaccination defines clinical reasons by reference to ‘Covid 19 — The Green Book’. Chapter 14a outlines the government’s belief that ‘very few’ people cannot be vaccinated, which is summarised in a table on page 27. Essentially the only people who are likely to be exempt are those who have had a severe ‘systemic’ allergic reaction to the covid vaccine itself, another mRNA based vaccine or an individual component of the vaccine.

Those with history of anaphylaxis to other drugs or vaccines should still proceed but with special precautions and advice, whilst those who have food or animal allergies (including anaphylaxis) or hypersensitivities to other drugs/vaccines are not considered at risk.

The document continues to outline that there is no evidence to suggest pregnant or breastfeeding women are at risk, and that the only adverse effect for those suffering immunosuppressant diseases would be the possibility of reduced effectiveness of the vaccine.

Whilst the Green Book appears very restrictive about criteria for exemption, it does seem as if the government may allow some flexibility. In a document published on 15 September 2021 by the Department of Health and Social Care, a wider range of examples of those who may be medically exempt is provided, including those with learning disabilities who find vaccination particularly distressing and those receiving end of life care.

A temporary self-certification procedure has been put in place, although this will expire 12 weeks after the NHS ‘Covid Pass’ system is fully operational. Time limited exemptions will also be available for those with short-term medical conditions requiring hospital care, and pregnant women. The guidance on how to apply is available here but employees should be advised that it could be a disciplinary offence if they make a false declaration. When the certificate expires (i.e. by January 2022) they will also need to apply for exemption through the formal route.

It should be noted that this is a fast moving situation, the operational guidance will need to be updated to take into account the DHSC statement on 15 September, and it may well be that the full extent of the medical exemptions may well change again in the future.

Can workers be dismissed if they refuse to have the vaccine?

The reality is that if someone refuses the vaccine, they will not be able to work in a care home unless they are medically exempt. If the employer has no suitable alternative work to offer that does not require vaccination, then the contract can be terminated with little risk of an unfair dismissal claim. The reason for dismissal is likely to fall into ‘some other substantial reason’ (SOSR); however, it is possible that some employers will dismiss on grounds of misconduct if they believe the employee has no good reason for refusing vaccination, or has not cooperated with attempts to find alternative solutions.

The employer has a legal duty to enforce the regulations. Any issues of discrimination under the Equality Act will fall under the category of ‘indirect’ discrimination — because the requirement to be vaccinated applies to everyone equally but is going to disproportionately affect certain groups (for example those with certain medical conditions, religious beliefs etc..).

Indirect discrimination is capable of being justified if the employer can show that it is a ‘proportionate means of achieving a legitimate aim’ and where there is a law in place, that argument has been effectively made and won by the government.

Employers will however still need to follow a fair process when dismissing, or risk a low value unfair dismissal claim for those who have at least 2 years’ service. (The reason it would be low value is that a tribunal will take into account that the dismissal would have been fair if the process was correct, so any loss of earnings will be limited).

ACAS have published guidance for employers outlining their legal obligations to check and record vaccination status, advice on consulting employees and possible options to explore with those who do not wish to be vaccinated. The article includes links to other useful resources.

What about side effects?

Many people are worried about the side effects of the vaccine, although it is clear the government will not accept this as a reason for not proceeding. Anyone who has to take time off work due to vaccination related illness will be entitled to statutory sick pay or their employer’s occupational sickness benefit scheme.

Some may ask about the possibility of pursuing a personal injury claim, however they would have to show the employer has breached a duty of care, and that damage arising from the breach was ‘reasonably foreseeable’. In the context of the care home regulations it is unlikely that an employer would be liable, however, specialist advice should always be sought from a personal injury lawyer.

It is also worth noting that in the event an employee becomes permanently unable to work due to the after-effects of the vaccine, the employer would be able to fairly dismiss on capability grounds, notwithstanding any issues of liability. There is no legal duty to continue employing someone to do a job if they are medically unable to do so. It might reassure clients to know that in the event they do suffer a severely adverse reaction there is a government compensation fund available.

What about pregnancy?

In the Green Book, the Government makes it clear that it does not consider there is any significant risk arising from vaccination for pregnant or breastfeeding women. Furthermore, there is no cause of action for ‘indirect maternity discrimination’ — any claim would have to be indirect sex discrimination and it would be ‘justifiable’ as outlined above.

The DHSC document mentioned above does refer to time limited exemptions for pregnant women, presumably by using the self-certification form although this is unclear. Anyone who is very worried about vaccination and is due to go on maternity leave might want to consider bringing the start date forward in order to avoid the November 11th deadline. Maternity leave can start from 11 weeks before the due date. If this does not meet the November deadline, then it might be possible to take a period of paid or unpaid leave before the maternity leave starts, (for example annual leave or parental leave if the client has other children).

If a pregnancy risk assessment identifies workplace hazards that cannot be addressed then the employer should be seeking alternative work in any event, or suspending the employee on maternity grounds. The maximum amount of maternity leave is 1 year, by which time the situation with vaccinations may well have changed, or the employee may feel differently herself. Government information on risk to pregnant women can be found here.

What alternatives do workers have if they really don’t want to be vaccinated?

Voluntary resignation for a reason relating to vaccination would probably look better on future application forms than being dismissed for Some Other Substantial Reason or misconduct, however there may be good financial reasons for waiting to be dismissed — particularly if you have a long notice period.

It might be possible to negotiate gardening leave or alternative duties, but this is not a legal entitlement. An employer can also require the employee to take any accrued but untaken annual leave during the notice period, so this might also be a solution here.

Negotiating with the employer to take an unpaid sabbatical may be a possible alternative for staff who do not wish to be vaccinated. It’s not ideal but might give people a breathing space to consider the pros and cons of vaccination or wait to see if the law changes again.

Employees should also be mindful of the need for references and the value of maintaining a good employment relationship when considering possible exit strategies.

Anyone who does decide to resign rather than be vaccinated should be aware that there could be repercussions if they wish to claim benefits — this also applies if the employer dismisses on the grounds of ‘misconduct’.

The DWP are able to sanction those who are dismissed on grounds of misconduct or who are deemed to have left voluntarily without good reason. Only certain benefits are affected: Employment Support Allowance (ESA), Income Support (IS), Jobseekers Allowance (JSA) and Universal Credit (UC). Sanctions are open to challenge and in practice it will depend on the grounds the claimant has for refusing vaccination. Reasons relating to protected characteristics under the Equality Act are likely to carry more weight. An employee will also be expected to have made attempts to resolve the issues rather than simply resign. See this article from Benefits Expert, Alice Buchanan, for more information on sanctions.

Future developments

The government is now consulting on extending mandatory vaccinations to the NHS and other social care staff. As noted above, this is a developing situation and many employers have raised concerns about the potential impact on an already difficult recruitment/retention situation in these sectors. What effect this will have on government policy, only time will tell. What is certainly clear is that the ramifications of the covid pandemic are likely to have an ongoing effect on employees and employers alike.

Lisa Crivello is an employment expert in the Expert Advice Team at Citizens Advice.

The information in this article is correct as of the date of publication.

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