Can care homes force their staff to have the Covid vaccine? – Victoria von Wachter comments for Care Home

The National Care Association revealed that some care workers are refusing the vaccine for ‘cultural reasons’ while others are doing it on health grounds or are worried it has been fast-tracked and not been tested on enough people.

James Sage, head of the health & social care sector team at Royds Withy King, says the low take up of the vaccine by care workers “creates significant operational challenges for care providers”.

He points out that “there is currently no legal basis in the UK to make vaccination for Covid-19 mandatory. In fact, the Public Health (Control of Disease) Act 1984 specifically precludes any government regulations from ‘requiring a person to undergo medical treatment’ which includes vaccinations.

“The Government has been clear that it has no intention of requiring anyone to have the vaccine.”

He says: “Requiring care staff to have the vaccine is unlikely to be a reasonable management instruction. Dismissal for refusal to have the vaccine is unlikely to be fair.

“Making it a requirement for staff who refuse because of a protected characteristic such as disability, pregnancy or religious/philosophical belief could lead to potential discrimination claims, which may be difficult to objectively justify.”

The MHRA has said people with a history of significant allergic reactions should not have the Pfizer/BioNTech COVID-19 vaccine, after two people suffered adverse reactions. While the World Health Organisation (WHO) advises pregnant women not to have the Covid vaccine unless they are at high risk of exposure.

However with deaths still rising in care homes and the total number of deaths in care homes in England now at 24,919 according to the Office for National Statistics (ONS), care providers are under pressure to make their care homes as safe as possible. So it is not surprising they are heavily encouraging their staff to have the vaccine.

Especially as UK’s deputy chief medical officer, Professor Jonathan Van-Tam, said even though it is too early to know whether the vaccine will stop transmission of the virus, “we do expect it to reduce this risk”.

'Requiring new staff to be vaccinated could be lawful in some cases'

Mr Sage says: “Requiring new staff to be vaccinated could be lawful in some cases; however, care needs to be taken where an applicant for employment does not want to be vaccinated because of a protected characteristic.” He warns that “refusal to offer a job in those circumstances could give rise to discrimination claims”.

Mr Sage recommends that “care providers should implement an effective information and consultation process with staff to encourage them to have the vaccine.

“A consultative approach could significantly reduce the number of staff who refuse to be vaccinated. Failing that, continuing to ensure robust infection control measures are in place and regular testing (ideally a test before each shift) will be key.”

Victoria von Wachter, barrister at 5 Essex Chambers, says another obvious benefit for care providers in having their staff vaccinated is that “they are less likely to become ill and can therefore be available for the vital function that they perform”.

However she warns "if vaccination is enforced it is predicted that there would be a considerable push back citing Human Rights breaches".

Making vaccination mandatory for new employees could lead to Employment Tribunal claims “If these people are refused equal access to employment on the basis that they have not been vaccinated or reasonably refuse vaccination then Employment Tribunal claims could ensue – remembering that the Employment Tribunal can hear claims that arise prior to employment as well as during.”

She adds: “Given that people in care pose an increased risk of infection to those caring for them, it could be argued that employers were doing no more than exercising their duty of care under the Health and Safety at Work Act 1974 when offering vaccination to these employees.

“The key point is whether or not this can legitimately be enforced by way of a ‘reasonable instruction’.

There are a number of reasons why an employee could resist having to follow this ‘reasonable instruction’, according to Ms Von Wachter.

• The employee or potential employee is disabled and has a fragile immune system.
• There could be religious objections to the vaccine if for example it was not halal or kosher and therefore offended against resinous principles.
• The employee or potential employee could harbour a genuine belief in the ‘wrongness’ of vaccination – this would have to be more than just needle phobia or demonic possession fears.

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Authors

Victoria von Wachter

Call 1997

Related areas

Employment

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Healthcare

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