Employers, beware ‘discrimination’ if you want staff vaccinated
GIVEN that employers have a duty to protect the health and safety of their employees can they insist that their employees be vaccinated against Covid 19?
The short answer to this is only if the employer is running a Care Quality Commission (CQC) regulated care home in England.
England introduced regulations which came into force on November 11, 2021, so that Care Quality Commission (CQC) regulated care homes in England are able to legally require workers to be vaccinated. From April 1, 2022, CQC-regulated providers in the health and social care sector in England will also be able to legally require workers who have direct contact with patients to be vaccinated. The regulations will be reviewed in November 2022.
In Wales the position is different. The Welsh Government has said it is not presently consulting about making vaccination mandatory for workers in the health and social care sector in Wales.
Other than this, the UK and Welsh governments’ guidance for employers on Covid-19 vaccinations are very similar. Both recommend that staff be encouraged to take the vaccination by providing information and offering paid leave for vaccination appointments, but that staff should not be pressurised as this could be discriminatory.
This is because certain groups of people may not be able to have the vaccine or may choose not to have it. Those people are likely to have protected characteristics such as disability, sex (pregnant women or women wishing to conceive who may choose not to have the vaccine) or race (vaccine hesitancy is highest for black people, followed by Bangladeshi/ Pakistani people).
Consequently, forcing a blanket requirement on employees to be vaccinated may be discrimination. It may also be a breach of the employee’s human rights – the right to privacy (Article 8) and if the reason for rejecting the vaccine is religion or belief a breach of their right to freedom of thought, conscience and religion (Article 9).
However, just this month in the case of Allette v Scarsdale Grange Nursing Home Limited, which arose from facts in January 2021 at a much earlier stage in the vaccine rollout programme, an employment tribunal in Leeds determined that it was not unfair dismissal for a nursing home to dismiss a care assistant who refused to be vaccinated against Covid-19 in January 2021.
This was of course before the statutory obligation on care home workers in England to be vaccinated and at the very beginning of the rollout programme when only certain priority groups could be vaccinated, including care home workers. The employer decided to make it a condition of continued employment that employees be vaccinated. Ms Allette did not want to be vaccinated, saying it had been rushed through without proper testing and no-one could guarantee it was safe.
At a disciplinary hearing on January 28, Ms Allette indicated for the first time to her employer that she had a religious objection based on her Rastafarianism. The employer had not known before that point that she was a practising Rastafarian. The employer explained to her that the home’s insurers would not provide public liability insurance for Covidrelated risks after March 2021 and that the employer faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. Following the hearing, the employer concluded that Miss Allette did not have a reasonable excuse for refusing the vaccine and that, if she remained unvaccinated, she would pose a real risk to the health of residents, staff and visitors as visitors might be unvaccinated. Miss Allette was dismissed for refusing to follow a reasonable management instruction and she claimed unfair and wrongful dismissal.
The tribunal rejected both claims. It considered whether the dismissal breached Miss Allette’s right to respect for private life under Article 8 of the European Convention on Human Rights. It accepted that the employer had a primary legitimate aim of protecting the health of staff, residents and visitors, and a secondary aim of not risking breaching its insurance policy. In the tribunal’s view, the mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents. The tribunal noted that, while Miss Allette was genuine in her fear of and scepticism about the vaccine, that fear and scepticism was unreasonable, since she had no medical authority or clinical basis for not receiving the vaccine. The interference with Miss Allette’s private life was judged to be proportionate.
As for the reasonableness of the dismissal, the tribunal concluded that it was reasonable for the employer to conclude that an employee who was merely sceptical of the official advice did not have a reasonable excuse for refusing to have the vaccine. The tribunal found the employer genuinely did not believe Miss Allette’s refusal was connected with religious belief, given the way in which she belatedly raised this point.