Care Sector – No Jab, No Job

• Blog

On 16 June 2021 the Health Secretary, Matt Hancock, announced in Parliament that COVID-19 vaccinations will become mandatory for all those working in care homes. 

Details at present are thin on the ground, but it appears that once the necessary legislation/regulations have been approved by Parliament then there will be a 16 week grace period for care home staff to be vaccinated. It has been announced that those who are medically exempt from taking the vaccine will not be subject to this proposed legislation and will be able to continue to work. 

This proposed legislation will bring a number of legal and ethical issues. Due to the prevalence of trade union memberships within the care sector, it would not be a surprise to see appeals of the legislation on human rights and equality grounds. We do not propose to comment on such appeals within this article but to provide our initial view on the employment issues that will arise.

Dismissal

It appears that once the legislation is in force that, if 16 weeks later a care home worker has not been vaccinated, then they will likely be dismissed. 

An employer can only dismiss an employee fairly if the dismissal is for one of the following five fair reasons:

1. Conduct – normally this relates to poor behaviour and misconduct
2. Capability – an employee being unable to perform their role fully (missing targets etc) or being medically incapable for performing their role
3. Redundancy
4. Statutory restriction – an employee can be dismissed if it would be unlawful for them to do their job (for example a professional driver loses their driving licence)
5. Some other substantial reason.

On the information we currently have available, it would appear that the potential fair reason for dismissal in the event that an employee refuses the vaccine would be statutory restriction.

Section 98(2)(d) of the Employment Rights Act 1996 states that the employer can in principle fairly dismiss an employee if it can show ‘that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under any enactment’. 

Once the vaccine becomes mandatory for employees within care homes, an employer may dismiss an employee for refusing the vaccine, as their refusal would subsequently result in a violation of the enactment.

It will however still be necessary to consider whether that dismissal was fair on its own facts and merits, paying particular attention to the procedure used and the reasonableness of the dismissal.

Section 98(4) of the Employment Rights Act 1996 states that the employer must still be acting reasonably when dismissing an employee.

In order to satisfy the reasonableness test, usually the employer should consider:

• Offering the employee any alternative employment that is available
• Alternative methods of doing the work which would not be unlawful
• Any alternative scheme proposed by the employee

In relation to care homes and carers’ the above would usually be impracticable in reality. If the alternatives are impracticable or the expenses involved are too high, then the dismissal is unlikely to be regarded as unfair.

We would recommend to all employers in the care sector to start giving thought to whether their employees have been vaccinated. If they have not and it is apparent that certain employees may not take the vaccine,  consideration must be given as to whether there could be any alternatives to front line care.  

Discrimination 

The law protects workers against discrimination at work. The characteristics protected by the Equality Act 2010 are:

• Age
• Disability
• Sex
• Sexual orientation
• Gender reassignment
• Marital status
• Religion or belief
• Pregnancy and maternity

There are a number of different forms of discriminatory conduct:

1. Direct discrimination – This happens when an individual is treated less favourably than a colleague because of a protected characteristic.
2. Indirect discrimination – If a company has a provision, criterion or practice which has a disproportionately negative effect on particular groups of people then such practice could be deemed to be indirect discrimination.
3. Harassment – Unwanted conduct related to a protected characteristic which violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment 
4. Victimisation – This happens where a member of staff is treated badly or punished because they have made, or people think they have made, a complaint about discrimination or have given evidence in a discrimination case
5. Discrimination arising from a disability – unfavourable treatment because of something arising in consequence of a person’s disability 
6. Failure to make reasonable adjustments – Employers have a duty to make reasonable adjustments to the workplace or workplace practices to help disabled employees to carry out their work.

There could potentially be discrimination claims should an employee be dismissed for refusing to have the COVID vaccination for a reason relating to a protected characteristic. We can envisage individuals may refuse to have the vaccine due to religious or philosophical beliefs or perhaps due to disabilities. It appears that those who are medically exempt will not be subject to or caught by the legislation and therefore those individuals with health conditions which constitute disabilities may be protected.

The issue here will be what is the definition for being medically exempt as certain conditions and disabilities are not covered.

It will be interesting to see how the government addresses the issue of care workers who are exempt from mandatory vaccination yet are still able to work on the front line, when their colleagues who refused for non-medical reasons, are not. 

I anticipate (hope) that any legislation for the mandatory vaccination will have accompanying guidance on safeguards, employer obligations, exemptions and how to address the issue of conflicting legislation in the form of mandatory vaccination and the protection of protected characteristics. 

GDPR

The introduction of mandatory vaccinations will also have data protection implications. Employers will need to seek vaccination status and medical conditions from their staff in order to record and monitor the vaccination progress.  Medical data falls within the special category data under the UK GDPR and Data Protection Act 2018.  

Special category data requires employers to identify a lawful basis for and the condition of processing special category data. Failure to identify the requirements of processing such data would be a breach of the UK GDPR and reportable to the Information Commissioner’s Office. GDPR breaches can also result in employers paying considerable fines.

We would recommend that employers check whether their privacy statements with employees and candidates deal with collecting, using and storing information on vaccination status. Due to the fact that medical information is a special category of data the obligations on employers are greater and as such preparation of a Data Protection Impact Assessment (DPIA) should be considered. 

Comment

The proposed legislation has been the subject of consultation since April 2021 and therefore it should not really come as a surprise. It is however a significant development that legislation will mean that employees face the risk of losing their job if they are not vaccinated. 

We will monitor this development closely and comment further on it as more information becomes available. We would recommend that employers consider now taking the following actions:

1. Check contracts of employment and employment policies
2. Check data protection privacy notices/policies to determine whether employees have been notified that information relating to medical and vaccination status is to be processed. 
3. Discuss the impending legislation with current employees to determine whether any of the employees may be at risk of dismissal. We advise these discussions take place now to try and encourage them to take the vaccine. This could involve taking time off to receive the vaccination and/or to speak to medical professionals about the vaccination
4. It may become apparent to certain employers that they will lose employees when the legislation comes into effect and therefore business and staffing planning needs to be done now
5. Follow the news on this issue closely and be prepared to act quickly

Here at GA Solicitors we have significant experience in advising those in the care sector and we actively encourage employers and employees who will be affected by the proposed legislation to contact us.  

You can contact me directly by emailing kayleigh.arthurs@GAsolicitors.com or by calling 01752 203500.