What are the legal implications of mandatory COVID-19 vaccinations for care staff?

Mandatory COVID-19 vaccinations.

Whilst it has become common practice for employers to include ‘no jab, no job’ clauses in their employment contracts for new employees, mandating compulsory COVID-19 vaccinations for existing frontline care home staff could cause significant problems for employers in the sector.

Already open to potential legal challenges of detrimental treatment or discrimination, the new government regulation which came into force on 16th June 2021, could put additional strain on employers already struggling to retain and recruit staff.

A human rights violation, breach of contract issue, health & safety detriment, or discrimination claim; frontline care home staff who are unhappy to accept COVID-19 vaccinations could have a variety of employment law protections to fall back on.

Employees from the BAME community, for example, may be less likely to embrace vaccination and could reasonably look for protection from discrimination under their protected characteristic.

Similarly, employees and workers who have a reasonable belief that the COVID-19 vaccinations represents a ‘serious or imminent danger’ to them could refuse to return to work under the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021.

As former health secretary Matt Hancock acknowledged when confirming the government’s stance “The vast majority of staff in care homes are already vaccinated but not all …”.

Clearly, employees who have been happy to receive the vaccine to date are not at issue, but those who fall into the ‘not all’ category could be those most likely to oppose it as a point of personal principle.

Refusal to accept mandatory COVID-19 vaccinations may leave an employer with no choice but to implement disciplinary action or dismiss, with affected employees advancing a claim at Employment Tribunal for compensation as a result.

Further, who would they then be claiming against, their employer or the government for imposing the regulation?

In summary, the government’s action may be seen by many employees in the sector as a further assault on them, where zero hours contracts, pay and working conditions make for an already stressful and challenging working environment.

Vaccination is clearly a way out of the pandemic, but a ‘one size fits all’ mandatory approach could prove far too simplistic for the complexities of employment law.