The Government has announced that it is mandating Covid-19 vaccinations for care home staff.
Back in April, the Government announced a consultation process in which to seek views on the proposal of mandating care home staff to have the COVID-19 vaccination. It included its scope and any potential impact on staffing and safety. The Health Secretary announced on 16 June 2021 that the proposals will go ahead.
What does it mean to mandate care home staff to have the COVID-19 vaccination?
Well, according to the NHS, research has shown that by having the vaccine, it not only significantly reduces the risk of either getting seriously ill, having long term effects (long-COVID), or dying from the disease, but it helps reduce the catching and spreading of COVID-19. Hence the consultation into whether to mandate it for care home employees.
Whilst the evidence may help justify a business case for a care home employer to require its employees to be vaccinated, is the practice legal, can it apply to all groups of workers, and what are the implications?
The question of legality is complex both from an Equality Act and Human Rights Act perspective. Regarding the Equality Act, we know that where a practice or policy is applied that has the effect of disadvantaging a group of people who share any of the recognised protected characteristics (age, race, religion, disability etc.) then you have indirect discrimination taking place. However, indirect discrimination can, depending upon the circumstances, be proportionately justified, and legal.
For indirect discrimination to be justified (and legal), then firstly, there must be a legitimate aim that the business needs to achieve and then secondly, the method of achieving that aim must be proportionate i.e., there is no better way in which to meet that aim.
Minimising the impact of COVID-19
The legitimate aim for mandating vaccines, is primarily to stop the transmission of COVID-19 and minimise the impact of it. This is fundamental when the business operates in a sector such as social care. It also helps the organisation act in a socially responsible way in the overall fight against the disease. It could be argued therefore, that mandating the vaccine is business critical for care homes, and thus giving a sound legitimate aim (the first hurdle to justifying indirect discrimination taking place).
In terms of getting over the second hurdle in defending an indirect discrimination claim, then the question of whether requiring a vaccine is proportionate is the next consideration. Unfortunately, this legal position is less clear, and it has not yet been tested by the courts. We also know that the vaccine does not completely stop people from passing the virus on to others, although the NHS (based on their evidence) advises that by taking the vaccine, it will help in the reduction of the spread.
There are other ways in which employers can help reduce the risk of the virus spreading by its employees, such as the use of lateral flow tests, which are now available to all employers. Although the lateral flow tests are not 100%, the use of them do not have the same impact on the person, that taking the vaccine does and so it could be argued that it is a breach of article 8 of the Human Rights Act (the right for privacy and to have no interference).
We know that at the time of opening the consultation, only 53 per cent of older adult care homes in England were meeting the threshold of needing to have 80 per cent of staff and 90 per cent of residents vaccinated. It’s unclear whether making vaccinations mandated will increase this percentage. We may see employees leave the sector rather than being forced to be vaccinated if the proposals go ahead and is made a legal requirement by the Government. This is in an environment where there is a shortage of care staff, so recruitment could become even more challenging.
Potential ethical issues
Of course, it is not just a legal question as to whether it can be undertaken, there are also ethical issues with forcing somebody to become vaccinated. And, how this would conform to article 8 of the Human Rights Act, of the right to privacy and for no interference.
Certainly, going down the route of mandating vaccines within adult care homes carries risk and employers will be urged to be reasonable in its approach in forcing it through. Where there is hesitancy or concern then a reasonable employer will be expected to sit down with their employee to work out a reasonable approach to managing the situation; this may be to reallocate duties, or to redeploy the employee, or even engage with professional experts who may be able to communicate to the workforce the evidence behind needing vaccination and therefore alleviate fears. Without doubt, consulting with your workforce will be required in the hope that you can get everybody on board with the business and social case for introducing the policy. Ultimately, if no compromise can be found, an employer must be able to evidence that all options have been exhausted before ultimately ending the employment relationship.
Always seek guidance
Given the complexity and evolving situation with COVID-19, and the fact that this issue has not yet been tested at Tribunal, we would always urge that you seek HR advice.
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