The following briefing has been developed to support ARC England members’ enquiries to date. We hope these responses provide some guidance; they have been drafted after taking legal advice.
Disclaimer: These recommendation are by no means exhaustive or conclusive as the details of the legalisation at this time are very high level. We will provide members updates as and when we have greater clarity.
The bill was debated and passed by a majority vote meaning that this will come into force on the 11th November 2021.
Uptake of the COVID-19 vaccine will no longer be optional for staff employed or anyone entering a registered care home.
In considering these policy changes, Ministers must comply with the equality legislation, including the public sector equality duty (PSED) under section 149 of the Equality Act 2010, their general duties under the National Health Service Act 2006, which are included in sections 1 to 1G, and the Family Test.
- COVID-19 is a reportable disease under RIDDOR and having the vaccination can be a means of protection of other staff or, for example, patients in a residential social care setting.
- The Health and Safety at Work Act 1974 requires the employer to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level.
- All employers have well established duties of care to protect employees in both contract and tort law.
The new legal development is the nature of the requirement for vaccination, through the Health and Social Care legislation requiring care homes to assess the risk of, and prevent, detect and control the spread of infections.
The Code of Practice on Infection Prevention and Control will also be amended. (By way of comparison, some NHS frontline healthcare workers have previously been required or recommended to have vaccines including for example hepatitis B and flu for certain healthcare workers but this is applied through workplace health and safety and occupational health policies.)
Vaccination requires an individual’s informed and voluntary consent and cannot be forced. If employees refuse vaccination, to discharge their health and safety duty, the employer may need to consider other steps that can be taken to protect them.
An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care) where an employees’ refusal has serious consequences but this approach is not without risk (as outlined below). Any employers considering this approach should follow the government guidance once this emerges and seek specific legal advice if necessary.
Care homes: overview of new requirement
The government intends to make COVID-19 vaccination compulsory for those working in care homes in England (this will not apply in Scotland, Wales and NI at the present time). The policy may later extend to other parts of the health and adult and social care sectors.
Subject to further details it appears that:
- Workers who can prove they are medically exempt will not have to have the vaccination.
- Care workers are likely to have 16 weeks to decide to take up the offer of vaccination.
- Those who are not medically exempt will no longer be able to be employed in an English care home setting.
The further consultation on mandatory vaccination for all care and health service workers is ongoing.
The government will provide more detailed guidance on mandatory vaccination in due course.
- How can employers making changes to terms and conditions of employment of current staff?
- Will there be a different approach for those on a zero hour contract vs. full time staff?
The outcome of the consultation plus a few points from the supporting documents have been published here; https://www.gov.uk/government/consultations/making-vaccination-a-condition-of-deployment-in-older-adult-care-homes
N.B. Please revisit this page on a regular basis as the details are changing frequently.
Preparing for mandatory vaccination
To prepare for mandatory vaccination employers should encourage as many employees to be vaccinated as possible and introduce a vaccination policy (if they do not already have one).
ARC have developed a draft policy template you may wish to use:
You can develop a vaccination policy which can be added to the organisation and therefore can be contractual.
As well as encouraging staff and having a vaccination policy as referred to above, the other steps to consider include the following.
Communicating with staff
Employers should communicate with all staff that vaccination will be a condition of employment. Employers can consider insisting upon vaccination before new employees starts or make it a contractual term to accept the vaccine when it is offered or when it becomes compulsory.
This change will make most difference to those that are vaccine hesitant (approx. 20% of the total social care workforce).
Some providers might include clauses related to vaccination in employment contracts for new employees.
Existing employees can be asked to agree to a compulsory vaccination clause as a variation to their contracts of employment. Some existing employment contracts already have medical clauses that may extend to vaccination.
Providers must make changes to contracts of employment terms and conditions via consultation and then change with staff. Providers will have to consult with everyone individually.
While we await the outcome of the next consultation (on none residential care settings) continue consulting with staff around any hesitancy and engage directly with employee representatives if you have them.
Change affects health and safety (H&S) reps and as this is a major change to terms it is reasonable for staff and the employer to be expected to consult with the elected representative for H&S (lead) in the organisation.
Some staff may decide to take the vaccination to avoid losing their jobs. In the interests of employee relations it is suggested that employers harness the power of the majority.
However, even if employees agree to vaccination in their original employment contract or a subsequent variation of it, employers still cannot physically enforce this as an individual’s informed consent is always required for any medical intervention.
Employers enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal. It is easier to introduce an immunisation clause into new starters’ contracts, although it would be prudent to discuss this with any recruits.
- Zero hour workers directly contracted – will require changes to their contract.
- Bank staff contact issued at point of deployment – overarching agreement for zero hours models.
- Agency staff will also need to employed on the basis of vaccination status.
Risk assessment for service safety;
Consider if you can undertake the contractual obligations of public procurement with unsafe staffing levels, particularly the lack of staff available to recruit to roles. Providers may have to consider contract handbacks.
- Medical exemption – is this at the discretion of the individual’s GP?
Yes, a medical diagnosis would be made via the clinician (GP) and therefore meets the exemption.
Vaccination is mandatory for everyone; medical exemptions can be found in the Green Book list;
Health condition exemptions can be complex. It is for the employer to ask for verification and potentially be challenged under the Disability Discrimination Act.
The Equality Act 2010 makes it unlawful for employers to ask about an applicant’s health or disability before they have been offered the job, or before including them in a pool of successful candidates to be offered a role at a later date, except in specified situations.
If someone became long term sick there could be a claim against the employer. The addition of mandatory vaccination as a condition of employment could therefore be considered to be causing an adverse event.
The NHS app does not list exemptions. It is anonymous and evidence will be required.
- Pregnant team members – do they have to be vaccinated?
Yes; pregnancy is not on the exemption list.
- Is that linked with indemnity for the provider if the NHS immunise staff, therefore not an employer liability?
This is an NHS issue due to the administration (and an adverse event occurring).
The assessment of the impact on the liability insurance needs to be clarified – we recommend talking with your insurance provider.
- What could be the legal position if a staff member refused vaccination and cited protected characteristics? Does this impact more widely on protected characteristics?
There will be a legitimate business case for the vaccination usage. This means the law that will be passed and it needs to be implemented in a proportionate way.
As long as you have an evidence base as to all the decisions taken as an employer, you can defend any claim and a provide yourself with a good base for a claim under the Equalities Act. There is no government support to the sector on this.
Redeployment is not likely to be an option for many members and employers could face unfair dismissal cases as a result. A fair policy implementation would need to be undertaken including a disciplinary process, hearing and dismissal. This process should include an investigatory stage even if the provider believes the situation is clear and no investigation is warranted. There should also be documented meetings with and support offered to staff. This is because even though the regulations require front line staff to be vaccinated, any dismissal decision could result in a challenge by the employee and it will be important that the provider is able to demonstrate that they acted fairly and reasonably. Staff are also able to take the 12-week notice period. Our advice is to consult with staff at the earliest point.
Within the original consultation, residential care providers supporting the under-65 age category – staff were not consulted. There is an issue here around the widescale approach being applied by the Government; they could be open to a judicial review.
- What could be the impact on the employer liability insurance if this legislation is passed and you do not have vaccinated staff?
Medical exemption would be deemed as compliant and the insurance position would be taken on an individual basis. This lacks clarity.
Members are not likely to be covered if they do not have any Covid-19 public liability cover.
We suggest reviewing your insurance policy and talking with you broker or insurance company about your existing policy and ensuring you ask questions at renewal stage.
- Who actually will be required to be vaccinated to come into a care home?
All people for example; hairdressers, NHS staff, delivery drivers, maintenance contractors and all others services.
We suggest reviewing all overarching contracts that you hold with these people and collate into a list and then work to amend each one to reflect your new contractual requirements.
Excluded; Urgent maintenance works staff.
- Is it lawful for non-employed individuals to asked about their vaccination status by the organisation – for example tradesmen or NHS staff visiting the registered service?
The majority of the regulation and inspection will be via the CQC.
- New starters – how will this work if a new starter has not received their vaccine and they need to have completed both doses of the vaccine which takes between 8-12 weeks?
Deployment is the criteria so yes, possibly you could keep someone on garden leave until both vaccines taken.
- So what date do we have to get everyone vaccinated?
This is an amendment to secondary legislation.
The legislation has been laid in Parliament; https://www.legislation.gov.uk/ukdsi/2021/9780348224993
The bill was debated and passed by a majority vote meaning that this will come into force on the 11th November 2021.
For those beginning their vaccination journey, they must have their first dose by Thursday 16 September 2021 to allow the eight-week gap between doses and ensure they are fully vaccinated by Thursday 11 November 2021. Staff can book or manage appointments on the NHS website here.
View the briefing paper issued 26 July 2021 from Anthony Collins Solicitors: Mandatory Vaccination is here – what do you need to do?