Compulsory vaccination for healthcare workers
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Compulsory vaccination for healthcare workers
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Government revokes compulsory vaccination for healthcare workers
On 1 March 2022 the Government announced its intention to revoke compulsory vaccination for social and healthcare workers on 15 March. This follows its consultation published in February 2022 which received over 90,000 responses, 90% of which supported revocation.
The Government is yet to produce any further guidance; however, they do state that health and social care workers have a professional duty to be vaccinated against COVID-19. This blog will be updated again when such guidance is available.
Background to the mandatory vaccinations
The revocation of mandatory vaccination reverses the legislation which was due to require healthcare workers to be fully vaccinated against COVID-19 by April 2022.
Alongside this, the Government has revoked the requirement for registered persons of all Care Quality Commission (CQC) registered care homes to ensure that a person does not enter the indoor premises unless they have been vaccinated (subject to certain exemptions). This requirement had been in force since 11 November 2021.
Why has this changed?
The Government guidance outlines that, when the original decision was taken to introduce COVID-19 vaccination as a condition of deployment, Delta was the dominant variant. It notes that, the more recent variant of Omicron is less severe and the percentage of those requiring emergency care or hospital admission is approximately half that of the Delta variant.
It also cites the vaccination programme as a key reason for the change, as this has resulted in improved immunity in the population alongside antiviral and therapeutics tools. Data from the UK Health Security Agency (UKHSA) shows that 5 to 9 weeks after getting a booster, you are at least 85% less likely to end up in hospital than if you are unvaccinated.
The Government has also rolled out the spring booster vaccination programme to individuals aged 75 and over, those with vulnerable immune systems and care home residents.
Is this likely to change again?
Given the emphasis from the Government on “Living with Covid” and the strong objection to return to normality, it seems unlikely that the Government will introduce any further changes which require compulsory vaccination in any industry sectors.
Can employers in the health and social care industry force employees to be vaccinated?
Whilst the regulations were in force, employers in the health and social care sector had a clearer pathway for taking disciplinary action against an employee that had not complied. Now that this requirement has been removed, it is likely that any disciplinary action resulting in the dismissal of an employee would be much harder to justify.
The risk to an employer would be a potential unfair dismissal claim (for an employee with over 2 years’ service) and a potential discrimination claim if the individual has raised an objection which is related to a protected characteristic. In addition, a requirement for an employee to be vaccinated as a condition of receiving work could potentially amount to a repudiatory breach of contract giving rise to a constructive unfair dismissal claim.
If an employer proceeded to dismiss an employee that was not vaccinated, a tribunal would need to consider whether this decision was fair in the circumstances. Amongst other factors, it is likely to consider current evidence which shows that the Omicron variant is much milder. It would also consider evidence showing that individuals that test positive are far less likely to be admitted as seriously ill to hospital.
The Department of Health and Social Care has published that, as the risks of the Omicron variant are now known and not as serious as anticipated, the mandatory vaccination requirement is no longer proportionate.
As a result, employers should carefully consider any mandatory vaccination policies that are in force and the justification for such policies. In April 2021, the Equality and Human Rights Commission warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks.
Can employers encourage staff to be vaccinated?
Yes, it is very clear that employers can, and should, continue to encourage staff to be vaccinated. The Health and Social Care Secretary has reminded unvaccinated health and care workers of their professional responsibility to be vaccinated. In addition, the Government has specifically recommended vaccination for the following individuals:
- Adults living or working in a care home for the elderly
- Frontline healthcare workers
- Frontline social care workers
- Carers working in domiciliary care looking after older adults
- Those aged 65 years and over
- In the first phase of the vaccine roll-out, younger adults with long-term clinical conditions
- Adults previously classed as clinically extremely vulnerable (CEV)
Employers remain subject to the Health and Safety at Work Act 1974 which obliges them to take reasonable steps to reduce workplace risks. There is some useful guidance published by Public Health England for employers on this topic.
Where can I find further information about requiring staff to be vaccinated?
Please see our blogs for further detail for employers to consider:
If you have any employment issues you would like to discuss please contact a member of the Employment team.