By Anna Dabek, a partner in the employment and pensions scheme at Anthony Collins Solicitors.
The recent news that Pimlico Plumbers plans to rewrite all of its workers’ contracts to require them to be vaccinated against coronavirus has led to many employers asking whether they can make the Covid-19 vaccine mandatory. This is definitely a question that is on the mind of all social care providers.
The UK Government has not made the Covid-19 vaccine mandatory. Introducing a mandatory vaccination policy for your workforce would therefore be going beyond what is legally required.
Having said that, social care providers have a number of safety-related obligations under which encouraging staff to get vaccinated would be expected. Under section 2 of the Health and Safety at Work Act 1974 (“HSWA 1974”), you have an obligation to ensure the health, safety and welfare of your employees. This includes an obligation to ensure, so far as reasonably practicable, that your employees are not exposed to Covid-19 by reason of their duties. Under section 3 of the HSWA 1974, you also have an obligation to ensure the health and safety of those people affected by your operations. This of course includes the people you support. In addition to the obligations under HSWA, you also have an obligation under Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to ensure, so far as is reasonably practicable, that those you support are provided with safe care.
In order to comply with these obligations, providers would be expected to conduct an assessment of the relevant risks associated with their operations and to implement, so far as reasonably practicable, suitable and sufficient measures to address/mitigate those risks. The exposure to and/or the transmission of Covid-19 is clearly a risk arising from the provision of your services and as such you are be expected to implement suitable and sufficient measures to address this risk.
The obvious measure that you should be implementing, in order to comply with your safety-related obligations, is to offer and expect regular testing of the care workers (see my blog on this topic). But can mandatory vaccination also be implemented to mitigate the risk of transmission of Covid-19?
My advice is that it is unlikely that you would be able to justify mandatory vaccinations, for the reasons set out below, and so, I would encourage you to look at your vaccination programmes differently.
The number one priority for providers is educating and informing the workforce about the vaccination programme – providing employees with very clear evidence relating to the benefits of the vaccine, the risks in not taking it and highlighting, in a transparent way, the known risks of the vaccination. It would be helpful to provide your staff with resources and signpost them to the evidence and information so that they can feel empowered and informed when making decisions. Public Health England (PHE) published guidance, ‘Covid-19 vaccination: guide for healthcare workers’ (updated on January 15, 2021), which explains why it is important for care workers to receive the vaccine.
Having a clear process for identifying why someone is refusing vaccination and working through their objections on a one-to-one basis should be the next course of action. You should have open conversations with staff who do not wish to be vaccinated, to listen and understand their concerns and then see if you can help provide them with the reassurance they need. Consultation with staff and sensitive internal communications should contribute more towards voluntary take-up of the vaccine.
Employees may object to vaccination citing that this is because of their health, a ‘religious belief’ or because they are what is referred to as an ‘anti-vaxxer’ – have never received a vaccination, nor intend to and are actively against vaccinations. Although there is no case law setting out that strong feelings against vaccinations can be considered a ‘belief’ under the Equality Act 2010, it is certainly something I could see being accepted by the courts.
Some care workers may also seek to argue that to require them to undertake a test is against the Human Rights Act, as the right to respect for private life (under Article 8) includes the right to decide whether to undergo medical treatment.
Given the above, and that currently, staff continue to work with people you support using appropriate PPE without being vaccinated, as already said above, it is unlikely that you would be able to justify mandatory vaccinations.
I am aware that as a solution some providers have introduced an incentivisation programme. These could be seen to indirectly discriminate against people and could be seen to downplay the significance of their concerns. I would be happy to speak to any provider that is considering this as an option.
The approach you take with future recruits can, in my opinion, be more robust where the approach and messaging is managed carefully. Our advice at Anthony Collins Solicitors is that you can require it to be a condition of an offer of employment that an applicant is Covid-vaccinated and that they continue to be so i.e. have further doses of the vaccination in the majority of cases. You will, however, need to give careful consideration as to how such an approach is implemented, how the relevant paperwork is drafted, how you manage staff who refuse the vaccine once employed, and how you will manage those that are not vaccinated because of a reason related to a disability or religion/belief (for the reasons highlighted above). I would therefore suggest seeking legal advice before changing your recruitment practices and our team is able to help ensure this is done well.
We have developed fixed fee advice and templates to support providers with implementing Covid-19 testing and vaccination policy. Do get in touch.