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With the Covid-19 vaccine fast being rolled out across the country and all over 18’s to be offered a first dose by the end of June 2021, the Government has now mandated that all people working in elderly care MUST be vaccinated in order to continue to do this work. The new legislation, which is subject to Parliamentary approval, is expected to come into force from October.

Whilst front-line NHS, care home staff and social care workers were at the front of the queue for a vaccine, voluntary uptake has not been as high as the Government would like and in many areas of the country it falls significantly short of their target of 80 per cent of staff in a particular care setting being vaccinated. This is particularly so in London.

It seems that the Government’s approach of positive messages regarding the vaccine and relying on people to voluntarily have the vaccine in order to protect themselves, and others, from the most severe symptoms of the virus has not been sufficient. Only 47% of English care homes had more than a fifth of their staff take up the vaccine by April 2021 (two months after workers in these settings had become eligible for the vaccine).

The Government has been reviewing the case for compulsory vaccinations in elderly care settings for the last couple of months and the decision will hardly come as a surprise to those who have been listening to the Government’s most recent narrative.  Boris Johnson commented that making vaccinations mandatory shouldn’t be alien to us when doctors are required to have Hepatitis B vaccines to protect their patients (and themselves).

However, the PM isn’t quite right on the Hepatitis B point as doctors aren’t legally required to have a Hepatitis B vaccine. The General Medical Council states that it is good medical practice to have such a vaccine unless there are medical reasons not to, but it is not a legal requirement.

Whilst we await further information on the exemptions that will be available, these appear to be limited to medical reasons. That will help employers avoid claims for disability discrimination, but will no doubt put pressure on an already stretched NHS, with employees who are exempt heading off to their doctor to obtain evidence to support their position that they are exempt. 

It appears that the Government will now consider whether vaccinations should be compulsory in other health and care settings, including the NHS. Given this most recent development, it seems likely that Covid vaccinations in these settings will become mandatory. However, with the care sector already stating that making vaccines compulsory will make recruitment in their sector even harder, compulsory vaccinations will no doubt place additional pressure on an already stretched NHS.

For those outside of the health and social care sector it seems unlikely that vaccinations will become mandatory with Matt Hancock, the Health Secretary, stating that there are no plans to extend mandatory vaccinations beyond health and care workers.

It is expected that employers will be able to dismiss employees lawfully where they refuse to have a vaccine and there is no medical exemption which applies, as it would be illegal to continue to employ them. However, if an employee has more than 2 years’ service then they have the right not to be unfairly dismissed and although illegality is a potentially fair reason for dismissal, an employer must follow a fair process before dismissing an employee for this reason. Such a fair process would involve consulting with the employee and considering the availability and suitability of alternative employment.

We await further clarification on this from the Government once the legislation is passed.

 

If you require guidance on this issue in the meantime then our Employment Law team are here to help. 

Katie Ash
  • Director
  • Solicitor
  • Head of Employment Law

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