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Mandatory vaccination - will it happen?

View profile for Julie Temple
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Mandatory vaccination - will it happen?

As it stands from 1 April 2022, providers of CQC-regulated activities in the health and social care sector in England will only be able to deploy individuals who have been fully vaccinated against COVID-19 in patient-facing roles. Points to note from the recently published guidance are:

  • “Healthcare settings” include hospitals, GP practices, dentists and community services where care is delivered in a person's home.
  • Frontline healthcare workers, non-clinical workers such as receptionists, ward clerks, porters and cleaners must be vaccinated where they have direct, face-to-face contact with patients.
  • Volunteers, temporary and agency workers and independent contractors with direct patient contact are covered.
  • For existing staff, the last day for first vaccination is 3 February 2022. New joiners after 1 April 2022 must provide evidence of first dose of vaccination at least 21 days before starting work, and then evidence of full vaccination within ten weeks of first vaccination.
  • There are limited exemptions for medical reasons, participation in clinical trials and those under 18 years of age. There are temporary exemptions for pregnant women and those who have recently tested positive for COVID-19.
  • In adult social care, vaccination status can be evidenced using the NHS COVID pass, an EU digital COVID certificate, or a Centres for Disease Control and Prevention vaccination card. In the healthcare sector, vaccination status can be established by asking staff directly, checking their own vaccination delivery programme or the national vaccination programme.
  • The guidance provides advice on the steps health and social care employers should take where workers are unwilling to be vaccinated (including consultation, possible redeployment and dismissal).

Petition - prohibit mandatory vaccination

Concerns have been raised about the introduction of mandatory vaccinations and a debate was held on 24 January 2022 in Westminster Hall, in response to a petition containing over 220,000 signatures, calling for the government to prohibit employers from requiring staff to be vaccinated. MPs participating in the debate raised strong concerns about the impact of the measure on the NHS' capacity to deliver services in light of the existing staffing crisis in the NHS.

Reports suggest that up to 73,000 NHS staff could leave frontline roles, which would compound long-standing staff shortages. The government says it is taking steps to mitigate this risk and to continue to encourage healthcare workers to receive the vaccine. Outside of the health and social care sector, the Parliamentary Under Secretary of State for BEIS said that there could be some other circumstances in which it may be lawful for an employer to require staff to be vaccinated, subject to legal considerations. He also commented that there was potentially more scope for a mandatory vaccination requirement to be introduced for new employees than for existing staff.

Yesterday the Government said it would reflect on scrapping mandatory vaccination.  

Recent Tribunal Case - dismissal of a care assistant 

An employment tribunal (Bright EJ) has held that the summary dismissal of a care assistant employed in a nursing home for unreasonably refusing to be vaccinated against COVID-19 was fair.

In the context of the state of the pandemic in January 2021, a small nursing home's decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. The care assistant's refusal to be vaccinated due to concerns about the safety of the vaccine was not reasonable in circumstances where there had been a very recent outbreak and deaths of residents at the nursing home, the pandemic was growing nationally and there was widespread publicity and advice about vaccine safety.

An employer's instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the employee's physical integrity in a manner capable of engaging Article 8 of the European Convention on Human Rights (ECHR). The employer's aims, of protecting the health and safety of the residents, staff and visitors to the care home during the pandemic and protecting itself against the increased likelihood of claims due to the withdrawal of insurance cover if staff members were unvaccinated, were legitimate.

An unvaccinated staff member would pose a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the home, such that the requirement for the care assistant to be vaccinated and the dismissal for unreasonably refusing vaccination was justified. Less draconian means could not have been used.

It was within the range of reasonable responses for the employer to conclude that the refusal was due to scepticism of the vaccine and not due to religious beliefs, as had been raised at the disciplinary hearing. In the context of the recent outbreak and deaths at the nursing home, and the urgency with which measures to protect the vulnerable residents needed to be put in place, refusing to comply with the management instruction to be vaccinated amounted to gross misconduct and the dismissal was neither unfair nor wrongful. (Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 (11 January 2021).)

 If you require any more information on this topic please contact the Employment team.