In the UK, it is not mandatory to have the COVID-19 vaccination for the general population. However, from 11 November 2021, individuals working in a Care Quality Commission (CQC) registered care home for adults in England will need to provide proof that they have had two doses of a COVID-19 vaccine to enable them to enter the premises (unless they are medically exempt).
The Department of Health & Social Care issued guidance which indicated that, in order to meet the deadline of 11 November 2021, care home workers should have received their first vaccination by 16 September 2021.
In addition to this, it has been confirmed that it will be compulsory for frontline NHS staff to also be fully vaccinated against COVID-19. Sajid Javid has announced that he expects to set a deadline of the beginning of April to give the estimated 103,000 unvaccinated individuals time to receive both doses.
Whilst approximately 90% of NHS frontline staff are already fully vaccinated, the proposals have been met with resistance as not all care home and NHS frontline employees wish to be vaccinated.
What does this mean for employers?
If an employee refuses to be vaccinated, then ultimately employers will need to decide whether to dismiss those employees. However, employers should only do so after having considered the reason for their refusal and any reasonable alternatives to dismissal which may be available.
Employers in the NHS and care sector will need to implement robust policies clearly outlining the vaccination requirement for its employees and also any professionals visiting the care home.
It is crucial that employers tread carefully because if an employee has more than two years’ service then they may be able to bring a claim for unfair dismissal and so it is paramount for employers to identify a potential fair reason to dismiss such employees as well as follow a fair process before making the decision to dismiss.
As the potential dismissal of employees in the NHS and care sector who remain unvaccinated (and are not medically exempt) will be as a result of Government legislation then a potentially fair reason may be such statutory ban or some other substantial reason (SOSR).
However, employers must still ensure they follow a fair process. This should include providing employees with notice of any potential dismissal, arranging meetings during which employees are allowed to be accompanied by a colleague or trade union representative and also be provided with the opportunity to put forward their position and reasons for refusing the vaccine. Employers should ensure they consider such reasons carefully when making their decision and provide employees with a right of appeal against any dismissal.
As part of the above process, employers should also be considering whether they have any alternative roles that employees may be able to do that don’t require vaccination. However, if employers only have limited roles of such nature but several unvaccinated employees then they will need to carefully select which individuals they choose ensuring the selection process is conducted in a non-discriminatory way.
Employers should also take care in ensuring they have considered any reasonable adjustments they could make such as if disabled employees have experienced difficulties with getting vaccinated due to limited mobility or would have difficulty in taking part in a formal hearing by telephone.
This is a new and developing area of law and employers must ensure they are carefully considering such developments. If employers have any concerns or want more detailed advice or guidance then please contact our Employment Team.