Legal ramifications of making vaccinations compulsory

Tom Speirs, partner and head of social care at Addleshaw Goddard, examines the decision to make vaccinations mandatory for care home staff from a legal perspective.

Care home staff have been and will continue to be key to the continued safeguarding of society’s most vulnerable during the pandemic and beyond.

Up until last week, the UK government’s position has been that it would not require anyone to have the vaccine. After months of rumour and speculation confirmation was received that Westminster is planning to introduce mandatory Covid-19 vaccinations for care home workers in England.

While the government’s vaccination rollout has been swift and effective, enforcing mandatory vaccines for all care home workers is not straightforward.

We’ve already heard from a number of social care sector bodies who are nervous that the move will discourage more people from taking up roles across the industry, which is believed to employ upwards of 1.52m in adult social care, with a current need for an additional 120,000.

However, we are aware that this move by the UK government is a bid to get as many people protected against Covid-19 as possible and accelerate the easing of restrictions which, due to the rising concern around various strains, has been pushed back.

Making vaccinations compulsory for all social care staff could potentially bring with it a raft of legal challenges.  Discrimination and employment laws mean that some employees may have grounds to legitimately object to being vaccinated, such as religious beliefs, health issues or pregnancy. Employers will need to handle such matters on a case by case basis.

Furthermore, compulsory vaccination in the health sector may result in employment tribunal claims, as well as potential staffing and recruitment issues.

There will clearly be a difficult balancing act between the understandable and reasonable desire to protect society’s most vulnerable, and respect for the rights of the individual.

There is also a concern that the UK’s four nations might not all adopt the same approach, again resulting in further challenges to the goals of such a ‘mandatory’ vaccination programme.

Looking at the picture more widely, individual risk is a key factor to the safety of others – particularly for the most vulnerable in our society.  Health and safety risk assessments of the workplace need to be reviewed and should include consideration of the vaccine programme and whether previously adequate control measures need to be strengthened due to the greater transmissibility of new strains. Employers may wish to consider individual risk assessments for employees who choose not to be vaccinated.

Addleshaw Goddard is advising clients in the social care sector who want to provide the safest environment for employees and residents but are, understandably, reluctant to make a Covid-19 vaccination a mandatory condition of employment.

We are advising clients to ensure that there is an appropriate information and consultation process in place with staff and to have a vaccination policy in place which encourages its uptake, sets out the government’s position and the health benefits, as well as the potential human rights and discrimination concerns.

It must be stressed that employers should listen to concerns if employees refuse to take the vaccine as there are, of course, genuine personal and health-related reasons for declining.

Social care providers are responsible for the care of their residents and employees and will have to manage their next steps very carefully to ensure that all legal obligations are upheld.

Photo Credit – CDC