By Katie Ash from law firm Banner Jones’ (www.bannerjones.co.uk) employment team
It seems that the Government’s approach of positive messages regarding the vaccine and relying on people to voluntarily have the vaccine in order to protect themselves, and others, from the most severe symptoms of the virus has not been sufficient.
According to recent statistics from the Department of Health and Social Care (DHSC) further to a consultation launched in April, and as cited by the BBC, ‘47% of English care homes for older people had more than a fifth of staff yet to take up the vaccine, despite staff at all eligible care homes having been offered vaccines, with the vast majority of homes having had repeat visits by vaccine teams’.
The Government has been reviewing the case for compulsory vaccinations in elderly care settings for the last couple of months and the decision will hardly come as a surprise to those who have been listening to the most recent narrative.
In fact, Boris Johnson recently commented that making vaccinations mandatory shouldn’t be alien to us when doctors are required to have Hepatitis B vaccines to protect their patients (and themselves).
However, the PM isn’t quite right on the Hepatitis B point, as doctors aren’t legally required to have a Hepatitis B vaccine. The General Medical Council states that it is good medical practice to have such a vac- cine unless there are medical reasons not to, but it is not a legal requirement.
Whilst we await further information on the exemptions that will be available, at the present time these appear to be limited to medical reasons. That will help employers avoid claims for disability discrimination, but will no doubt, once again, put pressure on an already stretched NHS – with employees who fit the bill heading off to their doctor to obtain evidence to support their position that they are exempt.
It appears that the Government will now consider whether vaccinations should be compulsory in other health and care settings, including the NHS.
Given this most recent development, it seems likely that Covid vaccinations in these settings will also become mandatory. However, the unintended consequence of that may be yet more pressure on the NHS, with the care sector already stating that making vaccines compulsory will make recruitment even harder.
For those outside of the health and social care sector it seems unlikely that vaccinations will become mandatory with Matt Hancock, the Health Secretary, stating that there are no plans to extend the scheme beyond health and care workers.
It is expected that employers in elderly care will be able to dismiss employees lawfully where they refuse to have a vaccine and there is no medical exemption which applies, as it would be illegal to continue to employ them.
However, if an employee has more than 2 years’ service then they have the right not to be unfairly dis- missed and although illegality is a potentially fair reason for dismissal, an employer must follow a fair process before dismissing an employee for this reason. Such a fair process would involve consulting with the employee and considering the availability and suitability of alternative employment.
We await further clarification on this from the Government once the legislation is passed.
If you require guidance on this issue in the meantime then our Employment Law team are here to help.