Last reviewed 25 January 2021
This article explores the top questions care providers might have in developing their policy on staff vaccinations against Covid-19. It discusses why a mandatory vaccination policy will be difficult to implement and recommends an approach based on “robust encouragement”.
What approach should I as a care provider take towards the vaccine for my staff?
The roll out of the vaccine against Covid-19 signifies the biggest step yet in combatting the risk posed to the public from serious illness and enables employers to begin to envisage a return to more normal operations. The Government has not made the take up of the vaccine mandatory so employers may be uncertain about their policy for their employees’ being vaccinated for work-related purposes. The issue is particularly important for care providers because of the high levels of risk to exposure of SARS CoV-2 to which their staff are exposed when delivering care to vulnerable people in their own homes or care homes.
Despite the protection that the vaccine offers to those who have it, care providers should be aware that the restrictions put in place by the Government, including social distancing and other Covid-secure measures, are likely to remain in place for the foreseeable future. This means that, even where staff and service users have had the vaccine, operations will not revert to “normal” for some time yet.
The approach to be taken to the vaccine by employers generally will vary in line with the industry and the individual circumstances of their employees. In the absence of any legal requirement for compulsory vaccination, employers should still support their employees to have the vaccine, and in doing so, state why it is in everyone’s interests to have as many people vaccinated as possible.
Care providers should perhaps go further and adopt a policy of “robust encouragement” by actively urging everyone, service users and staff, to be vaccinated as quickly as possible because it will significantly reduce the risk of people suffering severe illness from the SARS CoV-2 virus and help the care service to return more quickly to normal working, benefiting service users and staff alike.
The Government has made the vaccination of the most vulnerable people in the population and the people who attend them daily the top priority in its vaccination programme. To implement Government strategy, it follows that care providers should give their utmost encouragement to their staff to be vaccinated and every practical help possible to their being vaccinated.
Can I require my staff to have the vaccine?
Care providers, like all employers, must comply with the Health and Safety at Work Act 1974, which requires them to take all reasonably practicable steps to ensure the health, safety and welfare of their staff. It could be argued that care providers might adopt a policy of mandatory vaccination of care service staff to carry out their duty of care to their staff under health and safety law, taking the high level of risk that their working conditions impose.
Such a policy would probably run into serious difficulties because:
forcing employees to have the vaccine may well trigger human rights implications, as well as criminal charges of assault
medical interventions always require the informed consent of the person being treated
vaccination will not make unnecessary the other risk mitigation measures in place, ie physical distancing, the wearing of PPE and high standards of hand hygiene, which, if followed, arguably make vaccination less beneficial or important
there is also no evidence yet to demonstrate that the vaccine prevents transmission of the virus, so will not necessarily reduce risk
staff who are homeworking might not accept the need for being vaccinated while in this position
some staff will have valid reasons for refusing to have the vaccine and will receive legal protection against action taken against them for this reason; care providers as employers will, therefore, need to consider how to accommodate these individuals
other employees who do not wish to have the vaccine may then question why that accommodation cannot be extended to them.
The care provider’s position in this regard might be strengthened by:
an existing clause within the staff member’s contract of employment stating that medical intervention is to be administered where necessary to protect the employee’s health and that of those they come into contact with at work or
as stated above, the high-risk nature of care work (see next sections).
Nevertheless it will be very difficult to enforce a mandatory vaccination policy for Covid-19 particularly if the service’s policy on staff vaccination against infectious illness generally is based on personal choice and consent.
Employers should consider all factors involved before adopting a mandatory vaccination policy for their service.
What are the HR risks with requiring employees to have the vaccine?
Care providers should consider the following implications of a mandatory vaccination policy.
Having a policy requiring employees to take specific action is commonly accompanied by the threat of action against those who refuse to comply with the policy, which could include dismissal.
Employees with two years’ continuous service have the right not to be unfairly dismissed. Fair dismissals require a potentially fair reason for dismissal, a fair procedure and the decision to dismiss must fall within the range of reasonable responses. It is likely that employers who proceed with dismissal of an employee for refusing to have the vaccine will rely on the “some other substantial reason” ground.
Employers would need to show that it was reasonable to dismiss the employee in the circumstances, including an assessment of whether there were any other ways that the employee’s refusal could be dealt with in order to keep them in employment, including consideration of other available roles.
Employees may feel that the implied term of mutual trust and confidence has been breached if their employer imposes a requirement to have the vaccine, entitling them to resign in protest and claim constructive dismissal.
Employees may have valid reasons for refusing to have the vaccine which are connected to a protected characteristic covered by the Equality Act 2010. For example:
pregnancy — the vaccines have not yet been tested in pregnancy, so until more information is available, those who are pregnant should not routinely have the vaccine
medical conditions — those with certain medical conditions are advised not to have the vaccine; some medical conditions will qualify as a disability and so be covered by the Equality Act
religion or belief — some employees may refuse to have the vaccine due to their religious belief, though it would need to be tested by an employment tribunal and those who align themselves with the anti-vax movement may argue that they are protected by the philosophical belief element of the Equality Act.
It is important, therefore, to fully understand why an employee has refused a reasonable management instruction to have the vaccine, bearing in mind the potentially personal nature of the refusal. For example, an employee trying to become pregnant may have wished not to share that information. Alternatively, an employee may have to reveal a previously undisclosed disability as their reason.
Employers should also be wary of treating employees differently whilst waiting for them to be called up for their vaccination. The current Government strategy for rolling out vaccinations is partly based on age, so older employees will be vaccinated at what could be a considerably earlier stage than younger employees. This could lead to complaints of age discrimination.
Having a protected characteristic does not make dismissal impossible. Indirect discrimination, for example, can be objectively justified therefore the employer would have the opportunity to say that they had a legitimate aim for requiring the vaccine to be taken, and that there was no other less discriminatory method than dismissal (or other action) or achieving that aim.
Can I insert a clause in contracts to require employees to have the vaccine?
Where existing employees are concerned, this would mean a change to terms and conditions. Changes to contractual terms and conditions cannot generally be made without employee agreement; consultation with employees (and trade unions, where necessary) would be needed with a view to seeking agreement. To impose the change without agreement may amount to a constructive dismissal.
Where agreement is not forthcoming, you may decide to terminate the employee’s employment and re-employ them on the new terms. However, this runs the risk of unfair dismissal and specific advice should always be taken in this regard.
Including a contractual clause for new employees will need agreement from the employee to be employed on those terms.
In either case, implementation of the clause should be done in a reasonable way and take into consideration the individual circumstances of the employee in question.
How can I encourage my employees to have the vaccine?
As noted earlier, encouraging employees to have the vaccine will be the most appropriate stance for the vast majority of employers.
You may consider encouraging employee to have the vaccine in the following ways:
providing access to accurate and credible information about the vaccine to allow employees to make an informed decision about the vaccine and reminding them to check the source of any information they may seek for themselves to guard against any misinformation
having senior management pledge to have the vaccine when it becomes available to them (but avoiding placing pressure on those staff to have the vaccine)
permitting time off during working hours for attendance at appointments
paying employees for the time off to attend an appointment
putting enhanced provisions in place for employees who experience any sickness caused by the vaccine.
Can shielding employees return to work once vaccinated?
Further Government advice on this topic is awaited, and specifically clarification on the effect of the vaccine on those with certain medical conditions. In addition, guidance indicates that the benefits of the vaccine do not take effect immediately.
Notes and references
Having a policy addressing vaccine issues will be the most appropriate vehicle to let your staff know your approach. See also:
Staff Vaccinations and Immunisations in Care Homes (England) Policy
Covid-19 Vaccination of Staff and Service Users Policy