Mandatory COVID-19 vaccinations for employees is in the news. On 14 April, the Department of Health and Social Care started a five-week consultation on making vaccination a condition of deployment in older adult care homes to protect residents from the virus.

The consultation reports that 99% of COVID-19 deaths have occurred in vulnerable groups including people living in care homes and the staff who work there. The social care working group within SAGE has advised that a vaccine uptake rate of 80 percent amongst staff in older adult care homes and 90 percent amongst the residents is needed to provide a minimum level of protection against outbreaks of COVID-19. Whilst overall uptake has been high, this masks significant regional variations and there remain a significant number of care homes which are not yet achieving the required level of protection against outbreaks.

The proposal is to bring in regulations requiring a COVID-19 vaccination as a condition of deployment for staff within older adult care homes. Moreover, it is being considered whether to extend these provisions to NHS workers who provide personal care to those living in care homes. The proposal will apply to roughly 10,000 care homes across the UK who have at least one person over the age of 65 and would apply to all staff deployed in these care homes. Included within these staff are those employed by an agency, volunteers and support staff such as cleaners and kitchen staff, however, the provisions will not extend to those visiting care homes who are not essential caregivers.

The government is placing the responsibility on care home providers to ensure that all workers deployed are vaccinated and are considering what period of grace should be applied for new and existing workers to get the vaccine.  Enforcement would be via the Care Quality Commission as part of fundamental care standards.

Could the vaccination requirement apply to wider NHS staff?

A leaked unsent letter intended to be received by the staff at the Chelsea and Westminster Hospital Foundation Trust has indicated that COVID-19 vaccinations may become a contractual requirement for all staff, and this may be implemented across other NHS Trusts across the UK. The hospital has refuted its intention to make COVID-19 vaccinations compulsory. However, the potential of COVID-19 vaccinations becoming a requirement of employment for wider NHS staff has clearly been subject to discussions at very senior level.

Issues for employers

Whilst the overwhelming majority of NHS workers and social care staff may be in support of the vaccine with 80% of NHS workers already having received the jab, the potential of workers refusing to be vaccinated may cause issues for an employer, in particular NHS Trusts. ACAS guidance states that although employers should support employees to be vaccinated, “employers cannot force employees to be vaccinated”.

Article 8 of the European Convention of Human Rights protects the right to a private life and by making the vaccine mandatory, whether that be by NHS Trusts, other public bodies or employers, this would be likely to amount to an interference of the right to a private life. Therefore, employers must show that the interference is justified and proportionate in order to make the vaccine mandatory upon its workers.

Employers have pointed to their duties to protect the health and safety of their staff or customers as grounds to insist on vaccinations but there are other less intrusive ways to achieve this including COVID-secure working, social distancing and testing. Aside from specific healthcare settings where legislation may mandate compulsory vaccinations it remains to be seen whether such a requirement could be justified across wider employment settings.

Other vaccines are already a mandatory requirement for certain NHS staff. For example, relevant staff who refuse the Hepatitis B jab must sign a declaration explaining their reasons for refusing the jab and declaring that they understand the potential risks caused to them as well as understanding that they may be removed from certain duties.

The imposition of a mandatory vaccine may lead to employers such as care home providers and NHS Trusts having to remove employees from certain job roles if they refuse to be vaccinated. With already understaffed care homes and the NHS, this could potentially be catastrophic in that residents and patients may not receive the care they need and employees who have received the vaccine may become overworked. Following a year of extreme sacrifice from NHS staff, this may result in trade union action and negative press.

Enforcement of a mandatory vaccine policy may also open employers up to discrimination claims. Some employees may refuse the vaccine on the grounds of medical conditions, religious beliefs, age or pregnancy. There is also a multitude of factors contributing to vaccine hesitancy, for example, evidence shows that BAME individuals and adults aged between 16 to 29 years old are more hesitant to receive the vaccine. This raises the prospect of indirect discrimination claims and employers may find themselves having to justify such requirements to an employment tribunal.

What can employers do?

Employers who wish to impose a mandatory COVID-19 vaccine policy should consider carefully how they would justify such a policy in their workplace setting and would need to carry out a risk assessment. Much will depend on the workplace setting. For example, it may be justified that NHS workers and care home staff are required to receive the vaccine to protect the vulnerable patients they work with. However, a requirement for office workers who do not come into contact generally with vulnerable persons would be much harder to justify.

Employers should also consult with any recognised trade unions or workplace representatives over their reasons for introducing the mandatory requirement and the evidence in the risk assessment. There should be an effective communications process with the wider workforce and an opportunity for staff to ask questions. Any individual issues or concerns should also be addressed.

If the requirement amounts to a change to terms of the contract of employment, then employees will need to agree to the changes. Employers will need to assess how to proceed where staff object.

For new employees the requirement should be made clear at the recruitment stage and once a job offer has been made, medical issues or other concerns which may lead to an objection could be discussed and addressed.

Government guidance on the COVID-19 situation is constantly being updated and it is essential that employers monitor the most recent changes.

Can an employee be dismissed?

Employers should proceed carefully. A dismissal for refusing to be vaccinated as a condition of employment would attract widespread negative publicity and is likely to lead to a claim of unfair dismissal and potentially discrimination. 

An employer can successfully defend an unfair dismissal claim if they can show a fair reason for dismissal and that they acted fairly and reasonably in dismissing for that reason. A fair reason could be that the employee could no longer be provided with any work since it would be unlawful to employ them in the restricted workplace setting. This may be easier to demonstrate if the law required a mandatory vaccination, for example in the older adult care home setting or within certain parts of the NHS. However, there would be a duty to see whether a dismissal could be avoided by redeployment to other duties and employers would need to follow a fair dismissal process. Employers might also consider misconduct as the reason for dismissal in the sense that the employee has failed to follow a reasonable management instruction, but much would depend on the employer’s justification for the instruction and the ability to show that it was reasonable. It is also possible that the employee may resign over perceived pressure to have the vaccine, leading to risks of constructive unfair dismissal claims.

The introduction of a mandatory requirement to have the COVID-19 vaccination as a condition of work raises many legal issues that are as yet untested.

If you need advice about any workplace issues please get in touch with your usual Brabners employment lawyer contact or Lee Jefcott.