The Government has recently passed legislation which places obligations on care providers to ensure that their workers have been fully vaccinated against Covid-19. There had been much debate about whether such a law would pass, and what caveats it might contain, given the potential for discrimination or unfair dismissal claims which may be asserted by those who would be excluded from working in the sector if they refused or were for some reason unable to be vaccinated.
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 state that a “registered person” must ensure that a person does not enter their premises unless they meet certain criteria. A “registered person” is a business or person who, under The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, provides accommodation for persons who require nursing or personal care. The legislation therefore extends to all Care Quality Commission regulated service providers.
Service providers may only allow an individual on their premises if the individual is either:
- a care home resident; or
- able to provide evidence that they either:
- have had a complete course of an authorised vaccine; or
- have clinical reasons why they should not take an authorised vaccine; or
- providing emergency assistance at the care home; or
- providing urgent maintenance on the care home; or
- a member of the emergency services; or
- a friend or relative of a care home resident; or
- visiting a care home resident who is dying; or
- reasonably providing support to a care home resident in relation to their bereavement following the death of a friend or relative; or
- under the age of 18.
The amended regulations were made on 22 July 2021 and have a 16 week “grace period”, coming into force on 11 November 2021. This gives businesses and employees a short period of time to make adjustments or to decide whether to take up the offer of a vaccination, particularly due to the recommendation of an 8-week period between doses of many of the approved vaccines.
The new legislation is drafted in a relatively constrictive manner. It grants no exceptions for those who object to taking a Covid-19 vaccination on the grounds of a religious or philosophical relief. The only permitted reason for not taking up the vaccine is a clinical one, such as a known medical condition. Additionally, the rules apply not only to care workers, but to any person who wishes to step foot on a care home’s premises, unless they fall within one of the exceptions above. The implications of this are therefore far-reaching for any business which provides services for care homes as well as the homes themselves.
There had been concerns that a “no jab, no job” policy could discriminate against employees on the basis of disability or religious or philosophical belief. However, under Section 98(2)(d) of the Employment Rights Act 1996, a dismissal may be fair if the reason for dismissal can be shown to be that the employee could not continue to work in their existing position without contravention (either on their part of that of their employer) of a duty or restriction imposed on them by or under an enactment. Employees who whose profession involves working in care homes may therefore find themselves dismissed or reassigned to a different role off the care home’s premises if they refuse to be vaccinated and don’t otherwise fall under any of the other exceptions.
While special provisions for care homes have been carved out by new legislation, requiring employees to be vaccinated in order to work remains a complex legal subject, and may give rise to discrimination or unfair dismissal claims. Employers should always seek advice before taking decisions on an employee’s future based on their vaccination status.
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