Not yet! (As at 16 June 2021)
In April, the government launched a consultation on whether vaccinations should be made a condition of employment in care homes and if existing care home staff should be redeployed or lose their jobs if they refuse. According to the International Trade Secretary, Liz Truss, an announcement on the outcome of this consultation is imminent.
The Government is proposing to amend existing legislation to require older adult care home providers which provide services to those aged 65 or over, to only employ those who have received a Covid vaccine in line with Government guidance.
Under the proposed new rules, care homes must either redeploy staff who haven’t received a vaccine until such times as they get one or, if they refuse, dismiss them (see below).
It is likely that the rules will not apply to employees who can prove that they are medically exempt from receiving the Covid vaccine.
If you are faced with a situation where an employee is refusing to get a Covid jab, please call us for a free initial consultation and we would be happy to help.
If the policy is confirmed, how do I deal with staff who refuse?
Refusals by staff to receive the jab should be dealt with via the Care Home’s Disciplinary policy and procedures.
Once the law change is confirmed, there are three steps to take:
1. Inform all staff in a letter that it is now a legal requirement for them to receive a Covid vaccine. Provide a deadline for the staff to be vaccinated and inform them that you will be monitoring the steps they take. Inform staff that if they refuse to be vaccinated, they may lose their job and it may be a gross misconduct offence.
2. If an employee fails to book their vaccine (or provide confirmation), you should warn them that they must prove they have made an effort to book a jab and if they do not provide this proof within a certain period of time e.g. 7-14 days, you will initiate disciplinary proceedings.
3. Where an employee continues to refuse a vaccine, you should continue with the formal disciplinary process and where necessary, you can dismiss. For employees with over 2 years of service, you should follow a properly convened disciplinary process.
Is it fair to dismiss for a care home worker to refuse a vaccine?
As of 16 June 2021 it is UNFAIR and employers should not dismiss anyone with over 2 years of service for this reason.
Once the law changes, provided that it is confirmed by the government, dismissal is likely to be fair under the potentially fair reason of ‘illegality’. Employees dismissed, for this reason, would be entitled to a payment in lieu of notice unless you can show that it is a gross misconduct offence and have previously warned staff of this.
There may also be grounds to consider dismissal for the potentially fair reason of “Some Other Substantial Reason”. This is a catch-all category and given that care home staff must be conscious of the health and wellbeing of their residents, refusal to be vaccinated may be grounds for dismissal under SOSR. This would also entitle staff to a payment in lieu of notice. There is also precedent for such a policy, with many medical professionals being required to accept immunisations against Hepatitis.
Employment Law Solutions can help. We are an employment law service offering employment law advice for employers. With a wealth of knowledge in curing HR headaches for employers across the UK, Employment Law Solutions can offer comprehensive, stress-free, and pragmatic advice on employment law, including restrictive covenants, post-termination restrictions, and furlough. We offer 24/7, 365 guidance with a mission to help you get on with doing what you do best – running your business. Protecting your business will always be our main priority.