By Nathan Donaldson, employment solicitor at Keystone Law (www.keystonelaw.com) who has specialised in advising the care sector for more than 20 years
he government has launched a five-week consultation on the possibility of mandatory coronavirus vaccinations for care home staff in England, questioning whether a vaccine may become a condition of employment. A decision is set to be reached in the summer.
Why is the consultation taking place now?
It is estimated that in some parts of the country, care home staff vaccination rates are below 70%.
Medical opinion estimates that vaccination rates need to be above 80%-90% to provide the minimum level of protection for care home residents. Currently only 53% of older adult care homes in England are meeting this threshold.
What are the justifications for compulsory vaccinations?
The latest medical evidence is beginning to show the efficacy of vaccinations in preventing coronavirus transmission and infection. For instance, Public Health England has predicted that the Covid jab has saved the lives of 10,400 over-60s. For this reason, England’s Chief Medical Officer Professor Chris Whitty has commented that it is ‘a professional obligation’ for staff in a medical or care settings to have the vaccine to protect the most vulnerable.
Various government ministers have also suggested that it would be reasonable for employers to insist on vaccination. Health Secretary Matt Hancock has said that “making vaccines a condition of deployment is something many care homes have called for, to help them provide greater protection for staff and residents in older people’s care homes, and so save lives”.
As of April 2021, the Chelsea and Westminster Hospital Foundation Trust has already written to its staff (and other Trusts) indicating that it is going to implement compulsory vaccination.
SO WHY CAN’T THE CARE SECTOR ALREADY REQUIRE MANDATORY VACCINATION?
COVID-19 and the resultant pandemic is unprecedented in modern times. There is much diversion of opinion amongst employment lawyers, government ministers and even unions and professional bodies on the topic of mandatory vaccination.
Vaccinations are not presently compulsory in the UK. The Government can rely on the Public Health (Control of Disease) Act 1984 to prevent and control the spread of infectious diseases, but this Act specifically excludes the power to require a person to undergo medical treatment, including vaccination.
For such reasons, employers insisting on mandatory vaccination face several risks, which are summarised below:
Compulsory vaccinations in the workplace are potentially discriminatory due to an employee’s:
• disability and/or
EUROPEAN COURT OF HUMAN RIGHTS
Compulsory vaccination may also be a breach of an employee’s human rights and in particular:
The right to life (Article 2), namely the duty to protect life and failures to protect life.
The right to be free from inhuman or degrading treatment (Article 3): namely issues including serious mental or physical harm and restraint.
Right to liberty (Article 5): namely issues including mental health, mental capacity and restraint.
Right to private and family life, home and correspondence (Article 8): namely issues including autonomy, wellbeing and “vaccine passports”.
Right to freedom of thought, conscience and religion (Article 9): namely issues including the right to exercise strongly held beliefs.
The right to be free from discrimination (Article 14): namely issues including groups of people being treated differently
An employee’s health information is ‘special category’ personal data and employers must ensure they are handling their employee’s data with care.
If an employee has an adverse reaction to the vaccination against their express wishes to having been vaccinated, they may bring a claim for personal injury.
For such reasons employers who implement compulsory vaccinations may face several legal claims from their employees. This could be both costly and incredibly time consuming.
In addition to legal risks, the Trade Union Congress have also stated that “… forcing workers to get the jab will harm trust and employee relations.”
WHAT ARE THE LIKELY OUTCOMES OF THE CONSULTATIONS?
It may be decided that the current status quo will be unchanged.
Alternatively, it could result in a statutory basis for employers in the care sector to make vaccinations mandatory. This would likely include exemptions based on health grounds.
The government may take a middle approach of issuing non-binding ‘guidance’ which could offer the industry further support moving forward.
Care sector employers must balance ensuring the safety of their residents and staff, whilst also respecting employees’ freedom of choice. Moreover, in absence of further statutory intervention by the government, it will be difficult to make vaccinations legally compulsory.
It is for these reasons that the government has rightly moved to consult on this topic, so that care sector employers will have statutory certainty as to what they can require of their staff.
It is hoped that the outcome of the consultation will result in legislation or guidance that will support providers to make long-term and pragmatic decisions to ensure the welfare of its employees, residents and their families.
It is also assumed that any steps to make vaccinations mandatory will have associated safeguards, through requiring informing and consultation obligations upon the employer and for legitimate exceptions to apply where vaccination would not be appropriate. Exceptions may include those relating to employees who have a disability, pre-existing medical condition or are of an age or religious/philosophical belief that would afford them reasonable grounds to refuse vaccination.