Can The Care Sector Recover Without The Vaccine?

By Matt McDonald, partner and employment disputes specialist at law firm Shakespeare Martineau (www.shma.co.uk)

As the UK’s vaccine program continues being rolled out and the care sector eases its visitation policies, there are growing concerns around how to best protect both staff and residents. Thanks to the vaccine the sector could operate more safely, however, making vaccines compulsory for current or future care sector employees is fraught with risk.

Requiring employees to have the vaccine is still a grey area – we are in uncharted territory after all – and all employers face a dilemma in the coming months. So, what should care home operators consider before implementing a compulsory vaccination program?

Current guidance does not support mandatory vaccination, instead it states that employers should aim to support their employees’ decisions, whether they decide to take the vaccine or not. The current government consultation may provide more clarity in due course, but we are still several weeks away from any outcome and most employers in the sec- tor need to make difficult choices sooner rather than later.

Individual companies are still able to put in place their own vaccination policies, for example, making them mandatory for all employees. However, if businesses choose to go down this route and impose sanctions on those employees who refuse the jab, they must also realise that they are likely to receive employment tribunal claims.

Care homes could argue that they cannot operate safely without the vaccine and given the higher risk to vulnerable people, care providers have a better chance than most of being able to justify sanctions for those who don’t want to take the jab. However, that is not to say that it’s a low risk option.

Should an employee refuse the vaccine on any grounds, the best course of action for a business in the first instance is to attempt to understand the employee’s reasons with a view of persuading them to change their mind. Employers must also be sympathetic and maintain confidentiality, before then deciding whether to proceed with further action, including dismissal. There may be many reasons not to have the jab and dismissing these concerns outright can increase the legal risks and leave employees potentially feeling unsupported.

If employers do decide to dismiss those who refuse the vaccine, there is the potential for tribunal claims to be brought. In this case unfair dis- missal and discrimination claims, including on the basis of gender or religion, are likely to be the main risk areas. For example, at the moment, the government advises against pregnant women having the vaccine, as it has not yet been tested in this group. Asking a pregnant carer to take the vaccine and, on refusal, dismissing them could lead to a sex discrimination claim. Another often cited reason is the current lack of knowl- edge around the side effects of the vaccine. With more information coming to light around the blood clotting risks of the AstraZeneca jab, this is now a very credible reason for employees to give, thereby increasing the risk of a dismissal in these circumstances being unfair.

Seeking professional legal advice at an early stage is a wise move in order to understand the degree of risk in any given scenario. Alternatively, if a business wants a vaccinated workforce but doesn’t want to make vaccines compulsory, they can and should provide information about the vaccine and promote and facilitate its uptake across the business. However, employers should be careful not to put undue pressure on reluctant employees to take it.

If employees are hesitant to take the vaccine, there is always the option of redeploying certain roles to be home-based of suggest working from home for longer, or look at changing responsibilities so that non-vaccinated employees have minimal contact with residents. Even simply temporarily moving some employees from resident-facing roles to cleaning or back of house tasks could help in the short term.

Lastly, businesses should be pre-emptive and re-evaluate their recruitment contracts to mandate the vaccine or request an employee’s vaccine status. However, even this approach isn’t without risk and, although there are no unfair dismissal risks here, there is chance that discrimination claims in connection with recruitment could be brought by job applicants.

To protect and guide business planning, companies should begin formulating a vaccine policy as soon as possible, regardless of their approach to vaccination. This will give employees an overview of what the company stance is on vaccination, give them an outline of what processes are in place to deal with this new reality and various satellite matters, such as time off for vaccination.

Care homes are at a crossroads, reopening to visitors is crucial for residents’ mental health and will go a long way to bringing back a sense of normality. Compulsory vaccination will protect the sector, but this comes with an increased risk of potential claims from employees. Care homes need to assess their options and carefully understand their unique situation, but above all, they must keep residents and carers at the core of their decision-making.

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