Five care home workers alleged that they were unlawfully dismissed in 2021 because they refused to uptake the COVID-19 vaccine.
However, a tribunal in Leeds found that dismissing the staff was lawful due to the danger that failure to get vaccinated would pose to the elderly and vulnerable residents in their places of work.
Notably, this was at a time when vaccination was not mandated by law.
It was also reported that the tribunal concluded that their firing was necessary in order to minimise risk to residents.
This brings into question what measures providers can and will take in order to promote resident safety in a post-covid world and whether or not resident safety trumps care worker’s rights to bodily autonomy.
In the last year we have seen a massive decrease in the restrictions placed on society, and in care settings, when it comes to COVID-19.
To date, the formal guidance on visiting care homes, where it concerned COVID-19, was withdrawn on 1 April 2022 and has been replaced with a COVID-19 supplement to infection prevention and control. According to that guidance, providers are only encouraged to support all of their staff to uptake the COVID-19 vaccination. Further to this, risk assessments are advised wherever possible to help reduce the risk of contracting COVID-19 and minimise spread when it is contracted.
What still remains is if it is lawful for providers to dismiss staff who refuse the COVID-19 vaccine. According to the Leeds tribunal this is not only lawful, but necessary to protect the residents. However, there is no written law to mandate such a requirement of employment in care settings.
The primary concern for providers will be to strike a balance between infringing on employee’s rights and their duty to protect the health of residents, in particular from the risk of infection as set out by Regulation 12(h) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. With no legal requirement to get vaccinated, the waters are very murky for providers. In addition to this, questions will arise over the fact that residents and visitors themselves cannot be required to get vaccinated, and thus why would there be an additional requirement on staff?
It would seem sensible for providers to make vaccination a requirement of employment, however with vaccination rates dropping and no formal legal requirement in place it seems unlikely that providers will be able to continue insisting on vaccination as a condition of employment. This comes on top of a decline in staffing levels in the sector as a result of the pandemic.
Over the next few months providers will want to be alert to changes in law and government guidance, particularly where it relates to vaccination requirements.
