Increased concern about the Government’s plan for mandatory vaccinations in care homes

Why care homes?

The pandemic has taken its toll among care homes with deaths from COVID-19 within care homes having now reached almost 29,000 throughout the UK since the pandemic began.

The Government’s Scientific Advisory Group on Emergencies (SAGE) has advised that to receive the minimum amount of protection against COVID-19, at last 80 per cent of staff and 90 per cent of residents needed to be vaccinated. However, so far only 79 per cent of staff across the country have received the vaccination.

Why is mandatory vaccination such a concern?

Although many welcome the proposal, the issue so far has been a contentious one in the care sector. Concern has been raised as to why it should be limited to staff within care homes when older people often receive treatment from health staff from outside the care home and different healthcare professionals.

If the vaccine is going to mandatory for adult social care staff, should it not also be mandatory for staff working in the NHS and those staff working in other care home settings, hospices and those working in supported living?

What are the legal issues involved here?

• Vaccination is not suitable for everyone (e.g. pregnant workers). As matters stand at present, to now require an employee to be vaccinated without their consent, as a condition to providing work, could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal
• There are potential reasons where a mandatory requirement to be vaccinated could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.
• Currently, private vaccinations are not available. All individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to work could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified. The preservation of life of vulnerable residents, staff and service users  within the care sector may be considered by the Government to be a legitimate aim when imposing mandatory vaccination.

If mandatory vaccinations are introduced within care homes, one hopes that the Government will provide clear guidance for employers to deal with all of these complex issues.

When will the Government make a decision?

The consultation period is expected to be concluded on 21st May 2021.The Government will then be expected to make a decision as to whether this will become a condition of employment for care home workers.

What can be done in the meantime?

Employers may want to consider implementing a voluntary Vaccination Policy. This is in order to help encourage employees to have the vaccine in any event. It deals with important issues such as providing relevant information about vaccination, time off for vaccinations and data protection. We are able to draft a suitable policy for your business at a cost of only £350 plus VAT. Please contact a member of our Employment Team to discuss this further.