The Guardian reports today that Covid vaccinations are to be required for all care home staff. For the purposes of this blog, I’m going to ignore the fact that, once again, policy proposals have been leaked to the media prior to a formal government announcement. I’ll stick to the employment law aspects of the ‘no jab, no job’ proposal.
No jab no job?
As has been discussed previously, it can be less risky for employers to only offer jobs to recruits who have been vaccinated against Covid than to require existing staff to be vaccinated in order to continue working there. Existing employees may be able to claim unfair dismissal if they are dismissed for refusing to have the vaccine.
However, discrimination rights also apply prior to employment. Candidates as well as existing staff have the right not to be discriminated against. That means that if a candidate has not been vaccinated because of a disability or because of a religious or philosophical belief, the employer is at risk of a discrimination claim if they reject the application because the candidate hasn’t been vaccinated.
Employers across the board will need to carefully consider whether it is appropriate to impose a vaccine requirement. There will be roles where it makes more sense to be vaccinated – such as where the worker is entering customer homes or caring for elderly or vulnerable people. From this perspective, the government policy seems logical. However, that’s not the end of the story.
What about human rights?
It is also necessary to consider whether it can ever be appropriate to force a person to put a substance into their body – there are relevant human rights issues here. In addition, if there are other, non-invasive, means to protect staff and customers (masks, social distancing, regular lateral flow tests…) it will be harder for an employer to justify its insistence on vaccination.
Some groups remain advised against getting the vaccine. Advice may change over time, as it has for pregnant women. There are also important privacy and data protection rights attached to the matter – under GDPR, vaccination history is special category data, which means employers must have a legitimate reason to request or store that information.
The government aim is, on the surface, logical and aimed at protecting those in care homes who were so dreadfully touched in the early weeks of the pandemic. While the Guardian says that “83.7% of staff in adult care homes had received at least one dose by 6 June, and 68.7% had been double jabbed” (and NHS staff numbers are higher), there are concerns about the difficult conversations that would be necessary with those staff who remain unwilling or unable to have the vaccine. Care homes, like the NHS, are already understaffed. If dismissals result from this policy, or staff leave because they are upset about it, that will hardly assist.
Vaccines for visitors?
Also, what about visitors to care homes – relatives, doctors, paramedics, tradesmen – who may or may not have chosen to have the vaccine? What about those the staff (and others who visit) interact with away from work, given that it seems the vaccine doesn’t prevent transmission? In short, once you delve deeper, it’s necessary to ask where to draw the line for a requirement to be vaccinated. For the government, the optics are also relevant: as an employer, how do you insist on staff being vaccinated, whilst, for instance, preventing (even vaccinated) patients’ partners attending stressful hospital appointments with them? I don’t seek to suggest the two examples are connected – just that the logic doesn’t seem to follow through.
We often say that employment law issues are rarely straightforward; this is certainly not an exception to that rule. I don’t think there are easy answers here. For more information, do contact our employment team on 020 8944 5290.