The issue as to whether or not employers can require their employees to be vaccinated against COVID-19 continues to be a hot topic and has only been fuelled by the UK Government’s decision to make vaccinations compulsory for care home staff in England with effect from November 2021. Further, on 9 September 2021, the government launched a consultation on mandatory vaccination for frontline health and care staff.
So, what is the current position and what are the potential implications of this new legislation on the care home sector?
Background and context
The Office for National Statistics report that the deaths of over 40,000 residents in care homes are attributed to COVID-19, representing over a third of all COVID-19 deaths in England.
Whilst by April 2021, 81% of staff working in older people’s care homes had received their first vaccination, there are geographical differences throughout England with London homes showing only a 44% uptake for first doses. These figures are considered by the government to present a strong case for mandatory vaccination protocols, initially in care homes, but potentially across the wider health and social care sector.
Were vaccinations mandatory before the pandemic?
Last year, Prime Minister Boris Johnson urged people to get the COVID-19 vaccination, but emphasised that it will not be mandatory, adding that compulsion was "not part of our culture or ambition". However, that is not to say there has not been a compulsory vaccination in the UK before. The Vaccination Act 1853 made it compulsory for all children born after 1 August 1853 to be vaccinated against smallpox during their first three months of life.
In the more recent past, the Public Health (Control of Disease) Act 1984 specifically states that individuals cannot be compelled to undergo any mandatory “medical treatment”, which includes vaccinations. Nevertheless, employers could seek to insist on vaccinations where an employee’s contract of employment included an express contractual requirement for them to be vaccinated. However, any such clause would need to be very carefully and clearly drafted to be effective.
Such contractual requirements are likely to become more commonplace, as employers continue to look for ways to ensure the safety of their staff and those they come into contact with.
Will vaccines become mandatory in the care sector?
In July 2021, the government announced that, with effect from 11 November 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 will amend Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) to enable it to be a legal requirement that all employees and individuals providing services in registered care homes, along with any visitors, to be fully vaccinated against COVID-19. The only exception to this will be where there are clinical reasons why an employee should not be vaccinated with any of the authorised vaccines and the employee can provide evidence of this.
The Regulations as amended, will signify the UK’s first venture into mandatory vaccination since the Vaccination Act 1853. Failure to comply places a registered person at risk of enforcement action by the Care Quality Commission (CQC).
So, where employees refuse to be vaccinated (for reasons others than clinical reasons) and are dismissed, will they have any claims against their employer? Employees with a minimum of two years’ service have the right to bring a claim of unfair dismissal. However, where an employee is dismissed in compliance with the Regulations as amended, provided a fair process is followed by the employer and assuming there are no alternative roles available outside of the care home setting, it seems inevitable that the dismissal will be deemed to be fair.
Employees may seek to pursue a claim of indirect discrimination if their reason for refusing to be vaccinated amounts to a protected characteristic under the Equality Act 2010 e.g. if their refusal is for religious reasons or because of concerns about being vaccinated when pregnant. However, in such claims, discrimination can be justified where the discriminatory act is shown to be a proportionate means of achieving a legitimate aim and, where dismissal takes place in compliance with UK law in circumstances where no alternative work is available outside of the care home. In such circumstances, it appears unlikely that a tribunal would find the dismissal to be discriminatory, as any such finding would undermine the purpose of the Regulations.
It is important to note that the Regulations as amended will only have effect in England. Therefore, whilst care homes in Scotland and Wales, or indeed other care providers will not be covered by the Regulations, they may still choose to follow suit and dismiss non-vaccinated employees. If so, they would be at greater risk of a finding that any such dismissal was discriminatory and/or unfair, particularly if they choose to apply a blanket policy all staff irrespective of the level of their contact with elderly residents.
If an employer is able to take measures to ensure that a non-vaccinated individual does not work with or come into contact with elderly and vulnerable adults residing at the home, a tribunal may find that dismissal could have been avoided and is therefore unfair. It will be interesting to see what regard, if any, courts and tribunals in Scotland and Wales have to the Regulations and their application in England when considering such claims, particularly in the case of employers who may have care homes in both, for example, England and Wales.
Insurers continue to face uncertainty as to how personal injury claims arising from COVID-19, among both residents and staff in care homes will be presented.
Certainly, there are hurdles for any claimant to overcome; not only will they need to establish that a care home operator has breached its duty of care to an employee or service user, but there is the arguably more complex issue of demonstrating a causal link between the breach and the infection as there are many potential avenues for the virus to enter the home. Staff in particular could be exposed to the virus outside of their work environment.
Regulation 12 as amended places a duty upon a care home, or more specifically the registered person, to ensure that any individual entering the home has been fully vaccinated. That duty extends to all staff, volunteers and agency workers, but will exclude certain categories of visitor. The administrative burden is likely to be large, with every agency worker, cleaner, hairdresser and the like, expected to provide evidence of their vaccination and the care home to record that they carried out the requisite checks.
Failure to comply will not result in strict liability on the home in respect of employers’ liability but potentially enforcement action in the criminal courts by the Care Quality Commission (CQC) for breaching Regulation 12. The CQC will, however, be required to demonstrate that the failure to ensure that persons entering the home were vaccinated, resulted in persons residing or using care services in the care home were exposed to avoidable harm or significant risk of harm i.e. the risk of contracting COVID-19. Note that the CQC are only required to demonstrate a potential risk of harm rather than actual harm. A possible defence would be to demonstrate that the registered person took all reasonable steps and acted with all due diligence to ensure that persons entering the care home were fully vaccinated, by way of documentary and witness evidence.
Any enforcement action by the CQC can be expected to be capitalised on by a claimant as evidence of negligence, whether or not the registered person is found or pleads guilty to breaching the Regulations as amended. It is possible, therefore, that a registered person could be found or pleads guilty to an offence for breaching Regulation 12 as amended, but could escape any civil liability.
In a different vein, a care home’s failure to comply with the Regulations as amended, could see them falling foul of their policy conditions, leaving them without the benefit of indemnity in the face of a claim.
The Regulations as amended are somewhat controversial. From an employment law perspective, practical steps that employers should consider include assessing the COVID-19 vaccination uptake amongst their workforce and continuing to engage with staff to encourage voluntary vaccination. From a liability perspective, compliance with the Regulations won’t close off any avenues to prospective claimants, but fail to comply at your own risk!
Finally, it should also be noted that judicial review proceedings have been threatened. The legality of the Regulations is being challenged on the basis that the new legislation is incompatible with the Public Health (Control of Disease) Act 1984. Therefore, there may yet be some further movement on this issue prior to 11 November 2021.