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When it was recently announced that it would be compulsory for those working in care homes in England to be fully vaccinated against COVID-19 from October 2021, questions naturally arose around whether employers in other sectors could legally enforce the same requirement.

On 16 June 2021, it was announced that anyone working in a Care Quality Commission (CQC) registered care home must have both doses of the COVID-19 vaccine, otherwise they could face dismissal unless they could prove they had a medical exemption. Now, employers across other industry sectors are rightly wondering whether they can impose the same requirement upon their employees, even where it is relatively straightforward to manage COVID-19 risks in the workplace.

Employers have been questioning the legal position on enforcing the ‘no jab, no job' rule since Pimlico Plumbers announced their plans to introduce the condition of employment earlier in the year.

Care home vaccination rules due to be made law

Whilst the care home rules are yet to be become law, it is expected that the regulations will be made in July, with a 16-week grace period applying so that employees bound by the rules have time to get vaccinated.

The rules will also apply to those coming into care homes to do other work, such as healthcare workers, tradespeople, hairdressers and beauticians. CQC inspectors will also have to follow the new regulations, unless they have a medical exemption.

In Wales and Scotland, compulsory vaccination for care workers has been rejected. However, in Wales, as of July 2021, vaccination take-up is over 96 per cent for the first vaccination and 85 per cent for the second, whilst in Scotland almost all care home staff have been vaccinated. However, in England, only 65 per cent of care homes with older residents are meeting the recommended minimum level of staff uptake, and in London the figure is much lower at 44 per cent.

‘Coercion is not the way forward’

Care England and the National Care Forum, as well as trade unions, have expressed concern that coercion is not the best way forward, however, stating that current law dictates that sufficient staffing levels, training, equipment, cleanliness, personal protective equipment, risk assessment, and consultation with staff and residents are the factors that drive safety, rather than vaccination.

The Health and Safety Executive does not consider vaccination and testing as part of the control measures that an employer should be looking at in the COVID-19 risk assessment process.

However, for employers wishing to add vaccination-related wording to their COVID risk assessments or other documentation, the following may be appropriate:

"Although employees will be encouraged to take up the offer of the free vaccinations against COVID-19, and to voluntarily inform the company of such, this will not be a requirement to attend the workplace."

Christina McAnea, general secretary at UNISON, said that to produce the best results, people need to be encouraged to take up vaccination rather than be coerced. She highlighted joint research concluding that a move towards making COVID-19 vaccinations mandatory is likely to ‘harden stances and negatively affect trust in the vaccination, provider, and policymakers'. She also warned of the risk of some staff walking away from care sector jobs.

Clarity required on exemptions

Whilst there are clear medical reasons for being exempt from having the COVID-19 vaccination, such as underlying health conditions, the likes of mild allergic reactions are not considered a reason for exemption.

Other reasons for not receiving the vaccine, such as religious or other beliefs, as well as personal views, or even a fear of needles, are also contentious areas. However, the government is taking a no-exemptions approach in cases such as these. And where exemptions do apply, it will be down to the individual care home to put control measures in place to safeguard those who come into contact with exempted workers.

With plans in the pipeline for a further public consultation to decide whether COVID-19 and flu vaccinations should be a condition of employment in other health and care settings, it is inevitable that employers across the wider community will start considering the introduction of mandatory vaccinations, and they may well get away with it if employees go along with it.

However, at some point, it is inevitable that there will be a challenge that is strong enough to turn into a test case, in which case the employer will need to justify the requirement, which is going to be more of a challenge to do in a sector where the risks are more manageable than they are in a care home.

For those employers considering making vaccination mandatory, the following should be borne in mind:

Health and Safety

Under the Health & Safety at Work etc. Act 1974 and the Control of Substances Hazardous to Health (COSHH) Regulations 2002, UK employers have a strict liability to protect the health of their employees. The general duties of COSHH apply to incidental exposure to, and deliberate work with, biological agents. However, COSHH does not cover a situation where, for example, one employee catches a respiratory infection from another. This is because COSHH only applies in those circumstances where risks of exposure are work related, and not those where they have no direct connection with the work being done.

Equality

There are nine protected characteristics in the Equality Act 2010, but hesitancy around having a vaccination is not one of them. However, if the reason for refusal is related to a disability, and a worker can provide medical evidence, the employer may be considered as discriminating if they state that all employees must have the vaccination.

Unfair dismissal

Any employee with two or more years' service is within their rights to claim unfair dismissal. Therefore, unless a viable case is made for having a vaccination, such as a risk assessment or other compelling evidence, it could be the case that an employee dismissed for not having the vaccination takes action against their employer.

Human rights

Under human rights legislation, all employees must consent to receiving a vaccination, and all have the right to refuse it. On refusal, employees would usually be asked to sign a waiver to record the fact that they have been offered the vaccination, with their reasons for refusal being logged.

It may be possible to make agreement to vaccination a requirement of contract, turning down applicants who do not consent. This would however depend upon the individual terms of the employment.

Whilst employees cannot personally be forced to have a vaccine, if they attempt to persuade others to refuse it, in doing so placing them at risk, an employer may seek to take disciplinary action.

Further reading

Acas has put together some useful information for employers on how to approach the subject of workplace COVID-19 vaccinations.