One issue which many employers are currently grappling with is whether to make vaccination against COVID-19 compulsory for employees returning to the workplace. In a 2-part article we consider this issue in the context of care homes and other workplaces.
Care home employers
In Part 1 of this article, we look at the situation for care home employers.
From 11 November 2021, all care home workers and anyone entering a care home must be vaccinated unless exempt under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (Regulations).
The Department of Health & Social Care issued guidance on 4 August 2021 (Guidance) to sit alongside the Regulations. The Guidance includes a timetable which indicates that to meet the deadline of 11 November 2021, care home workers must have received their first vaccination by 16 September 2021. What is clear, however, is that not all employees want to be vaccinated.
What should a care home employer do if employees refuse to be vaccinated?
Ultimately it will be a case of deciding whether to dismiss those individuals having considered the reason for their refusal and any alternatives to dismissal which are available. If the employee has more than two years’ service, they may be able to bring a claim for unfair dismissal. It is therefore important that a potentially fair reason for dismissal is identified and a fair process followed before any notice of dismissal is given.
As the dismissal of an employee who remains unvaccinated and who is not medically exempt will be as a result of Government legislation, the potentially fair reason is statutory ban or, in the alternative, some other substantial reason (“SOSR”).
Unlike dismissals for performance or misconduct, there is no prescribed procedure that must be followed in order to implement a statutory ban or SOSR dismissal. However, a fair process must still be followed, which would include giving notice of the potential dismissal, convening a meeting and allowing the employee to be accompanied by a colleague or trade union representative, giving them an opportunity to put forward their position at that meeting, considering that position and providing a right of appeal against dismissal.
As part of that fair process, employers should also consider whether there are any alternative roles that the employee can do which would not require the employee to be vaccinated. If there are such roles and several unvaccinated individuals who could undertake them, employers will need to decide how to select individuals for the roles, ensuring that the selection process is non-discriminatory.
One question which has been raised in relation to any such dismissals is whether there is an obligation to collectively consult in accordance with the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). This obligation is engaged when an employer is looking to dismiss more than 20 employees in 90 days and when those dismissals fall within the broader definition of redundancy in TULCRA, specifically that the dismissal is for ‘a reason not related to the individual concerned or for a number of reasons all of which are not so related.’
As the reason for any ultimate dismissal in the present circumstances will be because the individual has refused to be vaccinated, and therefore does relate to the individual’s choice, our view is that the collective consultation obligations will not normally be triggered. However, if an employer recognises a trade union or has identified employee representatives who are entitled to be consulted on matters of health and safety, collective consultation should take place.
Employers in the care sector should also remain alert to changing circumstances even after notice of dismissal is served, for instance, whether to revoke notice for employees who indicate their willingness to be vaccinated at the eleventh hour.
When should notice of dismissal be given?
The answer to this is not clear cut. The Guidance indicates that the last date an employee can receive their first dose vaccination in order to be fully vaccinated by 11 November is 16 September 2021. It would therefore seem risky to issue any notice of termination prior to that date. The alternative approach is to hold off issuing any notices of dismissal until 11 November to give employees the maximum opportunity to obtain the necessary vaccination or to indicate that they are willing to do so. However, this approach is not without its problems as ultimately it could result in several employees legally unable to work but entitled to full pay/PILON for their notice period.
The Guidance tends to suggest that any action taken by employers to ensure mandatory vaccination of relevant employees will not contravene the Equality Act 2010. It is, however, something that should be kept in mind as discussions with employees take place. The Guidance does indicate that there may be situations where the imposition of the Regulations impacts a particular group of individuals at a disadvantage because of their protected characteristic. That being the case, an employer would have to objectively justify on the basis of compliance with the Regulations the treatment creating the disadvantage. The Guidance also suggests that employers keep in mind the duty to make reasonable adjustments for disabled employees who, for example, may have difficulties getting vaccinated within the set timescales due to mobility issues.
This is a new and evolving area of law and care home employers need to keep a close eye on developments in this area. For other employers considering a policy of compulsory vaccinations, watch out for Part 2 of this article.