These notes are a summary created by ARC which is based on legal advice we have obtained via the CPA. These notes do not in themselves represent legal advice.
It is a good idea for providers operating other types of setting (we would suggest any setting that is CQC-regulated) to stay up to speed with this issue because we know that extending mandatory staff vaccination is being / will be consulted on.
Providers must consult with staff and consult with staff representatives (it will be important to consult with Health & Safety representatives if these are not the same as staff representatives.)
This is a major change to terms and conditions so employers need to be seen to be behaving reasonably, hence the need to consult even though, arguably, the consultation process is not going to result in a different outcome.
It is suggested that providers use the draft regulations to ensure that both doses are captured in the consultation discussion notes and the organisational vaccination policy and it is suggested that boosters are included.
Providers must consult with staff individually too. This may be onerous but it is necessary to do it in order to be seen to have been reasonable (consultation with staff who have been vaccinated may of course be briefer and employers are likely to place more focus on hesitant staff).
As part of the process, the provider should make it clear to staff that it will become unlawful for them to continue to deploy them if they refuse to be vaccinated.
Long-standing staff are entitled to a 12 week notice period which is in addition to the consultation period. This means it will be important to start consultation significantly in advance of the October 2021 date.
For zero hours workers, their terms will also need to be changed which means consulting with those who are vaccine hesitant too (it is best to treat these staff including bank staff the same as other employees).
After the consultation process, the provider should then make changes to terms and conditions and the recommended method will be by introducing a contractual vaccination policy. This would be a proportionate way of implementing a decision that is legitimate because you are complying with the law.
For staff refusing the vaccination, a public sector equality duty assessment has concluded that the vaccine is in the interests of everybody so challenges that are based on religious belief or that mandatory vaccination impacts more widely on some groups than others may be less likely to succeed provided that the employer has acted reasonably.
The provider that has acted reasonably will have grounds for fighting any claims brought on the basis that under the Equality Act, the policy is discriminatory but this does not mean that the provider won’t have to fight the case and pay for the relevant legal fees.
Contracts with suppliers (agency workers, cleaning, maintenance, hair dressers etc) will also need to have the requirement added to their contract.
Employers can make changes to existing terms which will apply to anyone who joins the organisation in the future without consultation.
All these conversations will need to have taken place in advance of the October 2021 implementation date.