Will the covid-19 vaccine become mandatory for care workers?
As the media reports that the government is considering allowing holiday makers to travel to “amber” listed countries this summer if they have had two vaccinations against COVID-19 without having to self isolate for 10 days upon return.
The Daily Mail reported last week that the government is also considering making it compulsory for care home staff and health workers in England to have the COVID vaccine. No such plans are being considered in Scotland, Wales and Northern Ireland at present, it is reported.
Those that refuse will either be redeployed away from front line caring responsibilities or face losing their jobs.
The BBC reported that workers are likely to be given 16 weeks to comply and that the government have no plans to require those who can prove they are “medically exempt” to have the vaccinations; although what the definition of “medically exempt” is and what proof will be sufficient, remains to be seen. It is unlikely to be the same as being “disabled” under the Equality Act 2010.
Is compulsion legal?
Whilst persuasion and coercion must be the preferred choice (in my opinion) given that without consent, a vaccination would be an assault against the individual, is compulsion legal?
The government can of course pass laws that would make it illegal to practice in certain sectors without the vaccination, but at present, and until they do so, the answer is no. It would not be a reasonable instruction by an employer to insist that existing employees have both vaccinations before returning to the workplace.
Dismissing an employee who refuses to comply with such an instruction for gross misconduct would be unfair and could lead to significant claims for damages against employers.
Rather than issuing an instruction about vaccination, an employer could seek to vary the terms of employees’ contracts to include vaccination as a precondition to employment.
A variation such as this would require the employee’s consent. If that consent is not forthcoming, an employer could seek to terminate the employee’s contract but rather than classing it as gross misconduct an employer may seek to terminate an employee’s contract for “some other substantial reason” which is a potentially fair reason for dismissal, if handled fairly.
As part of a fair process the employer could then seek to re-engage the employee on new terms and conditions (including the requirement to be vaccinated). My advice is however that that is a risky strategy at best and if not handled very carefully, could lead to a claim for unfair dismissal.
It has been widely publicised that Pimlico Plumbers (who are not averse to a legal challenge) intend to make vaccination a pre-condition of new employment contracts. Whilst new employees won’t have sufficient service to bring claims for unfair dismissal, the policy may discriminate against those who can’t or won’t have the vaccine on grounds of:
- Age
- Disability
- Pregnancy
- Religion
- Philosophical belief
These are protected characteristics under the Equality Act 2010 and if an employee (or potential job applicant) is treated unfavourably (for example is not recruited or is not shortlisted for interview) because of one of these characteristics, they have suffered discrimination and may make a claim against the employer.
There is no upper limit on compensation claims for discrimination either in respect of claims for loss of earnings or injury to feelings.
In claims for age discrimination, indirect discrimination (where an employer imposes a condition, criterion or practice which puts the employee at a disadvantage because of a protected characteristic) or discrimination arising in consequence of disability; the employer may seek to rely upon the “objective justification” defence, i.e. that making vaccination a precondition of employment is a proportionate means of achieving a legitimate aim.
Whether such a defence will succeed depends very much upon the individual circumstances.
What is the aim and is legitimate?
The aim is to have a vaccinated workforce. It might be a legitimate aim in a medical/care setting as it seeks to protect the elderly and vulnerable against the disease.
The problem lies when we consider whether insisting on vaccination is a proportionate way of protecting the elderly and vulnerable against the disease.
Now that both lateral flow tests and PCR tests are widely available it is certainly arguable that testing is less invasive than vaccination and achieves the same aim, in which case the defence to a claim of discrimination will fail and an employer may have to pay significant damages to the employee.
Employees in the care sector are often only paid minimum wage. The job is hard work both physically and emotionally and the hours can be unsociable. The sector already struggles to recruit and retain staff and according to a survey by the GMB more than a third of 1,000 people surveyed said they would leave their jobs if vaccination became mandatory.
The move puts unwelcome pressure on an already under funded service which was hit very hard with COVID deaths and lack of PPE at the start of the pandemic.
If you need advice about vaccinations or COVID testing in the workplace or any other employment law matters feel free to drop me a line at slomas-fletcher@jacksons-law.com or give me a call on 0191 814 9699.
Sally Lomas Fletcher, Associate Solicitor, Employment Law, Jacksons Law Firm
