Ever since the emergence of effective vaccines against COVID-19, a debate has rumbled on as to the legalities and ethics of employers mandating employees to be vaccinated as a condition of their job and implementing so-called “no jab no job” policies, explains employment law specialist, David Sheppard.
Currently, there are no laws that compel individuals to have the vaccine, and in fact, the Public Health (Control of Disease) Act 1984 specifically states that members of the public cannot be compelled to undergo any mandatory medical treatment, which includes vaccination.
However, after media reporting this week, the UK Government has now published its proposals for introducing a mandatory legal requirement for visitors of care homes to be vaccinated against Covid-19.
Across the world, devastating outbreaks of the virus in care home settings often result in many deaths and serious illness through transmission from visitors and care home workers, but also residents returning from hospital.
Currently, any policy at a care home that makes vaccinations a condition of employment will amount to an interference of individuals’ Article 8 rights to private life, and ability to choose whether to have the vaccine or not and accordingly must be proportionate, weighing up the risks of transmission and serious illness and death, against the impact that policy has on that worker’s freedom of choice concerning medical treatment. Such a policy must also be objectively justified under the Equality Act 2010 if it has a disproportionate adverse impact on workers who are unable or unwilling to have the vaccine, such as due to health, pregnancy, cultural, ethnicity, religious, or philosophical reasons.
Care home operators’ heightened duty of care towards residents who have extreme vulnerabilities to Covid-19 will therefore potentially come into conflict with individual workers’ right to choose to be vaccinated or not. This will be a further issue if vaccine uptake is particularly lower than average due to the demographics of any specific care home workforce and its geographical location.
This balancing act by all employers of weighing community risk against individual entitlements when considering Covid-security measures for workplaces will be largely removed for care home settings, as the UK Government has now published the outline of its proposed wide-ranging legislation for care homes in England, namely:
Only certain limited categories persons will be exempt from the requirement to have two jabs, namely:
The proposed law will therefore cover anyone entering the indoor premises, including employees, contractors, tradespersons, agency workers, and other healthcare professionals, such GPs, NHS doctors, and nurses. The Government indicates that it will target groups with higher vaccine hesitancy to increase confidence, such as women of childbearing age, persons from ethnic minority groups, and persons opposed to vaccines on religious or philosophical grounds.
Inevitably many care home employers will be forced to dismiss employees for refusing to take the vaccine if by law they cannot physically enter their place of work. A serious risk is that care home employers will be compelled to dismiss large swathes of their workforce in one go if vaccine take-up remains low amongst its staff by the end of the 16-week deadline, which could render care homes inoperable and pose other serious risks to care home residents arising from understaffing, or must use agency staff, although vaccinated, who circulate between care homes.
A crisis of staff shortages could emerge due to large job losses in the sector and fewer workers applying for jobs in certain regions in England based on its demographics, which will pose new and serious risks to the safety of care home residents. The new law will also pose serious issues for other employers whose employees must visit care homes as part of their role, such as the NHS and property maintenance companies, and whether redeployment or removal of care home visiting is a reasonable accommodation if that person refuses to be vaccinated due to any protected characteristic. Similar issues on a much larger scale will emerge if mandatory vaccination laws are applied to the NHS and other healthcare providers in England, which is also being considered by the UK Government.
Care home providers may well also face collective litigation if the legislation is vague and open to interpretation and will be construed by the courts and tribunals in light of human rights and protections under the Equality Act. There is also the possibility of an attempted court challenge to the legality of the secondary legislation through judicial review for introducing these requirements, on the basis it is has a potential disproportionate impact on Article 8 rights and certain protected characteristics under the Equality Act 2010.
Whilst certain high-risk roles have identified the need for vaccination and established policies, such as Hepatitis B jabs for surgeons, these have traditionally been a policy decision of each individual healthcare provider, balancing the risks against individuals’ rights to choose and the needs of that provider. Where individuals choose not to be vaccinated, the policies will usually allow for accommodation where possible, and adjustments to their role where reasonable.
The new law essentially mandating COVID-19 vaccination for care home workers and preventing their physical attendance at work if not is an unprecedented direct intervention in the employer/employee relationship, particularly if the law will in practice compel dismissals or other adverse action against individuals choosing not to be vaccinated. With the huge impact legislation protecting society from COVID-19 has had on all our lives in the past 18 months, including limits on liberty and freedom to leave our homes during the most stringent periods of lockdown, this is perhaps not surprising and will be welcomed by many as a necessary step to protect the most vulnerable in the pandemic, but nonetheless marks in practice a new level of direct regulation of the employment relationship by a UK government.
If you have any questions relating to any of the items above, please contact our employment team here.