Compulsory Vaccinations in the Care Sector Webinar
Video Transcript
Good morning Everybody
I’m Elissa Thursfield, managing director of HR Anchor and today we’re going to be talking to you about compulsory vaccinations in the care sector. So it’s a real hot topic at the moment, it’s all everyone’s talking about really in the care sector at the moment and the challenges that are being faced with that as well.
So, today what we’re going to talk about is the regulations. So, the English position, a timeline for those regulations, medical exemptions, dismissals if you know that’s something that lots of people are talking about as well and also what the position is in Wales. Now the Welsh position and the regulations don’t actually apply there, so it’s only going to be a light touch on that subject so don’t you know I don’t want to drop off at the end and think this isn’t relevant. There are some points in that are relevant to England and Wales. Also for those of you who may have homes in Wales as well.
The Regulations
What are we actually talking about?
These are the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 which we’re just going to refer to as “the regulations” because that’s a bit of a mouthful even for us lawyers. As I’ve already said they apply only to England and they apply to CQC regulated providers now the grace period which commenced on the 22nd of July 2021 was intended to allow providers time to prepare for the regulations coming into effect on the 11th of November. The registered persons, their registered managers and providers need to ensure essentially that they don’t allow anyone entry into a care home unless they’ve had a full course of their vaccine. Now there are some exemptions to that and there are some exceptions as well that are very limited. What we’re going to focus on today because, it’s only one session and we’ve only got an hour, is this whole not denying entry and what to do with people who decide they’re not going to take the vaccine and we’re going to look at the medical exemption position as well. Now, the CQC will not be monitoring until it becomes a duty in November and they’re going to continue to use their existing assessment and enforcement policy so, they’re not coming up with any sort of new regime to police this they’re going to use the way that they at the moment assess and enforce and to make sure that providers are doing what they should be doing under the regulations.
It’s become a very political issue, Unison is up in arms about it, there’s a judicial review that has been brought, we haven’t had the result of that judicial review yet legal commentators are suggesting that that isn’t really going to change anything and that’s not going to be successful. It’s not just the UK if you’ve been looking at the press this week you may have seen that
in New York, they’re looking at potentially bringing in support from the military to help staff care homes and places where there are mandatory vaccines and that they’re anticipating they’re going to struggle with staffing as a result and it’s also being implemented and implemented in Australia. What essentially the sector is facing is staff shortages at the time when staffing is already an issue so we’re seeing various issues being raised across the press and being discussed at a political level as well about this at a policy level and what the implications are as well.
Timeline
22nd of July as I’ve already said the grace period started.
16th of September that day’s already passed as well that was the deadline for the first dose. This deadline was set
so that providers would know what period they had to get that second vaccine in place for employees so that what they were saying was the last possible date to have your first vaccine and still be done in time for the regulations coming into force was the 16th of September.
11th of November 2021 is when the regulations actually come into force and that’s the second dose deadline.
Medical exemption
On the 15th September, in true UK government style the day before the first deadline, we got a bit more clarification
about what was going to be the position with medical exemption. Self-certification form was released, so employees will need to sign a self-certification form if they are going to claim a medical exemption. It’s a temporary process prior to the launch of the NHS Covid pass system. Once that pass is launched, care home workers will then need to apply for medical exemption through that process and the self-certifications will expire 12 weeks after that they’ve been launched. Now what we’re not entirely clear on is what’s going to happen for someone to be able to get that pass. Now what we have seen is a list of conditions essentially is very limited. People who are receiving end-of-life care, people who either have severe learning difficulties or are autistic and having the vaccine would cause them significant distress and reasonably can’t be put in place to alleviate that distress. People who’ve got medical contraindications to the vaccine and people who have an allergy to the
vaccine or people who reacted poorly to the first one and that isn’t necessarily a “I don’t like needles” and didn’t react well in that sense, it’s our understanding it’s got to be a medical adverse reaction to that first vaccine. That seems to be where the
limits of medical exemption are going to fall.
Self Certification Wording
The wording of this exemption is,
” I hereby certify that I meet the medical criteria for exemption in the guidance above and therefore should not be vaccinated with any authorised Covid 19 vaccine”.
Now, that guidance above is that list that I just referred to in respect of the exemptions, as we understand them at the moment.
“I understand that this temporary medical exemption is only valid for the purposes of deployment in care homes and is not valid proof for domestic events, international travel and exemption from self-isolation”.
So, if people want to go to concerts or travel and things like that, this this isn’t going to help them in any respect, it’s only for the care sector.
“I understand that this temporary exemption will expire 12 weeks after the clinical review process goes live and I understand that 12 weeks after the clinical review process goes live I will be required to obtain an exemption through the clinical review medical exemptions process.”
Now, that process we don’t know exactly what that’s going to be yet.
OR
“I have completed a full course (likely two doses depending on the type of vaccine used) of an authorised Covid 19 vaccination to continue to be deployed in a care home after this date. I acknowledge that providing false information may result in disciplinary action”
Now, it’s that last bit so, the disciplinary action bit that’s going to give care home providers a bit of a get out, when it comes to potential dismissals and I’ll come on to that later on. So, as far as this goes it’s a little bit wishy-washy but there are some useful points there that we can pull from this in terms of procedures going forward. What we’ve already seen and actually I have come across my desk this morning, a care home provider who received a letter from a union have put together their own self-certification wording, doesn’t refer to any of this but basically say they have spoken to the employee, they can undertake that they meet the medical exemption the union are not doctors and that they’re not going to be providing any medical disclosure because it’s protected under the data protection act. Now, frankly that’s just not the case as employers you’ll know that medical investigation is something that is perfectly reasonable and certainly just saying that someone’s been honest with their union isn’t going to be enough so what I would be saying is if you are getting self-certification wordings that are different to the one that’s on the screen you don’t have to accept them. Now, on the .gov website there is a
template that you can download and use and we also have one as well so we can circulate those afterwards if you need
them but there’s certainly nothing wrong with insisting that an employee signs that the standard form has been provided by the government just accepting something from the union or even from a doctor at this point isn’t going to be enough and partly because we want a signature underneath that bit about the false information and disciplinary action part because that’s going to be potentially useful later on.
Medical exemption – is this a total elimination of risk?
If someone has medical exemption it’s not a total elimination of risk. So, if someone for example is autistic they have the medical exemption when the pass comes in they get the pass they’re not going to be having the vaccine and you can still allow them on the on your premises. You still need to be following infection control and usage of PPE and you need to remember as well that those measures are not a full substitution for a requirement to be fully vaccinated. So, we need to look at things like making sure that you’re keeping your risk assessment up to date, so that might include with someone who hasn’t had a vaccination. Do you need to look at a change of duties? Someone who is exempt is likely to also potentially be clinically vulnerable as well, should they be doing the duties that they are typically assigned to do whilst they’re not vaccinated and whilst they’re clinically vulnerable? Is there a different type of PPE that they can wear? Or more PPE perhaps? There may be some eye rolling at that, in terms of wearing more PPE when you guys are certainly wearing plenty most of the time. And, can they be redeployed? Now, the question that we’re being asked quite a lot at the moment is if someone has medical exemption can they still be dismissed? Now what was suggesting with this is that you take a very risk-averse approach to it if someone’s got medical exemption the likelihood is they’re likely to meet the criteria under the equality act as someone who is disabled, so they’re protected from discrimination and they are also entitled to reasonable adjustments. If there is someone who is extremely clinically vulnerable there are no duties that you can that you can change
or modify, you can’t give them more PPE to wear and they can’t be redeployed, prior to dismissal perhaps you should be looking at you know can they use up some of their annual leave? Could you look at periods of unpaid leave? Or even paid leave? Furlough is coming to an end in a couple of days, that also limits what’s available there, but certainly before you go down the risk that could be attached to a dismissal in these sorts of sorts of circumstances we will be saying make sure that you take legal advice. Ultimately if someone can’t attend work because the risk assessment prohibits it and says that essentially the risk is too high, then there are absence management protocols that you can follow in line with the way you would deal with anyone else who perhaps is off long term sick, or can’t attend work because of their health. However, I would not be moving straight to dismissal for someone who’s got medical exemption and where your risk assessment has identified that they can’t attend sites. It’s certainly something that if you’re working on a budget and your budget in terms of taking legal advice is limited this is the issue that I would be saying take advice on over everything else when it comes to this
subject.
Other Reasons
If someone says to you “Look, I can’t have a vaccine because of religious beliefs, other beliefs so they might be staunch anti-vaxxers, they might have strong political beliefs perhaps so don’t believe that the government should be legislating about this issue and that they’re encroaching on people’s civil rights. People who are trying for a baby often raise objections as well and we’re seeing that quite a lot of this at this point and human rights arguments. Now, I actually had a letter that included all of these this week other than the trying for a baby one from one individual who raised some very interesting arguments but ultimately the legislation the guidance from the government is its medical exemption and no other exemptions. The people raising these sorts of arguments that’s not going to be sufficient for them to be exempt from the vaccine in relation to the new regulations and those rules.
How do we start the process?
Our suggestion is if you haven’t done so already, hopefully you have because of where we are in that timeline it’s an information letter needs to be sent out setting out the timeline. Why these rules are being implemented so making reference to the regulations, make reference to what the exemptions are and ask for a response from the employee. Asking are they going to have the vaccine or are they not and ask them if they’re not prepared to have the vaccine what the reason for that is.
Non Refusers but will be late
Hopefully what this will do is flush out any refuses so you should hopefully get some responses to that letter where they’re either saying
“No, I’m not prepared to have a vaccine I’m not going to tell you why”
“No, I’m not going to have it because of religious beliefs”
“No, I’m not going to have it because I just don’t want to”
Then hopefully flush out those who are saying “I believe I’ve got medical exemption”
What you may also get is people who say “Well look, I’m not refusing but I’ve been a bit disorganized and I haven’t managed to get my first vaccine in time but I fully intend to go and have the full course done”
What we’re saying in respect of these people is now the regulations don’t come into force on the 11th of November. You don’t need to be dismissing these people at this point. Don’t dismiss them, but ensure that they’re providing you with communication around what dates they’re going to have their vaccine and try and get it in writing from them. An email is fine for them to provide a commitment that they are going to have that vaccine and provide their appointment dates.
If you get to the 11th of November and it’s likely that they’re going to tip over past that you’ve got the option of allowing them to take their accrued holiday. Or put them on a period of unpaid leave. Now, ultimately it could be two, three, four maybe even more weeks until they get that second dose but as soon as they’ve had that they can then come back to work. Now what you might get, and this is something where for quite cynical employers and I think it’s experience that has taught them that. Is what they’re concerned about is people saying “Yes, yes, yes, I’m going to have it I’ve just not got around to it”, that they’re then going to change their mind right at the last minute and say “Actually I’ve changed my mind, no I’m not going to have to have the vaccine”. You would then change from this process then on to the process where we look at dismissal.
Vaccine Refuses
People who are saying “No I’m not going to have the vaccine, I don’t care. If the government is saying that I’ve got to do this, I don’t have medical exemption, I’m just not going to do it”. Now this is not as simple as just dismissing on receipt of a refusal notification. So, when you get that letter back from them to say that they’re not going to have it don’t just dismiss. You must follow a procedure with these people, so even though the regulations and the government guidance says that people can be dismissed, that isn’t going to subvert the UK employment laws when it comes to a fair dismissal. You’ve
still got to follow a process. If someone has been employed for less than two years they won’t have the right to bring an unfair dismissal claim but what you do need to remember is that the people who are refusing are likely to try and bring equality act claims. That doesn’t have a qualifying period, they can bring a tribunal claim before that two-year anniversary. So what we always say is that procedure is good practice.
In terms of what those equality act claims could be, we’re seeing threats regarding religion and belief so even if it’s not religion that’s prohibiting someone from having the vaccine. What we’re seeing is more and more in the way of test cases about whether the anti-vaxxer movement is classed as a belief. A belief worthy of protection under the equality act. If someone’s trying for a baby and they’re not prepared to have it obviously that’s going to be more likely about women than it will men. Risks potentially a sex discrimination claim, so it is important to follow a procedure in terms of that process. You need to ensure the communications have gone out informing them about the new regulations, so that they’re not just been surprised with a dismissal. Make sure you’ve got that refusal in writing so that we’ve got a reasonable basis for starting this
process and then arrange a meeting with the employee to discuss their reason to make sure you can get to the bottom of why it is that they’re objecting. Establish that there’s no position they can be redeployed to or amended duties, so gardening duties or duties that mean that they don’t need to come into the premises. Review the risk assessment with them and confirm that there’s no other measures that can be taken. Most importantly do not dismiss at that meeting. The reason being, if anything high risk or concerning comes out of that meeting it gives you the opportunity to take advice before the hammer comes down and you’ve implemented the dismissal, because once notice of dismissal’s been given it can’t simply be retracted. If you try and retract a dismissal notice the employee has to agree to that. If the employee doesn’t agree that dismissal is still effective, but before the horse is bolted let’s just make sure that that we’ve got all our ducks in a row.
Now, the reason why we suggest you go through their reasoning and establishing there’s no position they can be redeployed to, is if that dismissal and the decisions were to be tested at tribunal, a judge is going to want to expect to see that the employer has essentially done everything they can to avoid dismissal. That this hasn’t just been a knee-jerk reaction, they’ve looked at all the options. Now where you’ve got regulations that prohibit someone from being on site, your options are obviously limited. But what we’re saying is still go through this process and still engage with the employee at that meeting. Now, if there’s nothing high risk or concerning and say you are taking advice and you get the go ahead dismiss then in writing, setting out the reason for that dismissal. Also make sure you provide that employee with the right of appeal.
Reason for Dismissal
What is a fair dismissal?
What do we need to do to shore up a process to reduce the risk of a finding of “unfair dismissal” and tribunal. Now, I’ve seen some guidance online where they’re saying that the reason for a dismissal under these regulations is dismissal. That makes absolutely no sense, the five potentially fair reasons that an employee can be dismissed, both are conduct, capability, redundancy, SOSR and statute to statutory in the illegality or breach of the statutory restriction. Now, despite the fact that some of the people you might be dealing with might be a bit belligerent they might show a bit of attitude and it’s not conduct and it’s not capability conducted you know where you’re looking at someone having done something wrong, addressing conduct issues in the workplace.
Capability is where they’re either struggling to do their job, there’s performance issues or absences causing capability or attendance issues. Not a redundancy situation. I’ve seen some argument between whether it’s SOSR or statutory illegality, my view is it’s not statutory illegality. That tends to be confined to some very fine and finite reasons that we don’t really need to touch on here. My view is that it will be an SOSR dismissal. What that means is if the dismissal for some other substantial reasons so that’s a reason that’s so substantial that the employment relationship cannot continue. Where we sometimes see this is perhaps where you have married couples that work together and they get divorced and that relationship between them is so broken that it’s creating toxicity in the workplace and it’s causing real issues and ultimately a decision needs to be made over whether one or both of them need to go.
Another example of SOSR is perhaps where you’ve got a business that relies on one very large client a good portion of their income and of their business and that client business says “If you don’t remove that person from from your employment I’m going to take my business elsewhere because I just don’t get on with them or I can’t work with them” that would be a substantial reason that could potentially justify dismissal. So in these circumstances where we’ve got government legislation that prohibits someone from entering your premises unless they’ve been vaccinated and they’re refusing to be vaccinated, we’re saying that is a substantial enough reason to justify dismissal. You still need to pass the usual employment tests, the regulations don’t waive this requirement which is why we’ve really made the points about going through that process.
Reason for Dismissal
You’ve got your reason for dismissal which every employee is entitled to be told about. They were dismissing for one of the potentially five fair reasons being SOSR, the employer must also then show that they’ve acted reasonably in taking that reason as sufficient for dismissing the employee. I would say in these circumstances where we’re looking at that they can’t
be redeployed, that there’s no way that we can modify that role that it’s not acceptable simply to have an employee who can’t come to work, so that is sufficient to dismiss the employee.
You have then followed a fair procedure and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer. So, would a tribunal judge expect a reasonable employer to put someone on paid leave for an unlimited amount of time until, perhaps these regulations change I would expect not. So the decision to dismiss would likely be found to be reasonable. This is why that process is so important so that if a tribunal claim is brought that we can tick through the legal test for a fair dismissal to show what the employer has done has been proportionate and fair in the circumstances.
Equality Act
The one that we often see cited at work most often is disability discrimination, but where someone has a mental or physical impairment that’s likely to last more than a year and has a significant impact on their ability to undertake day-to-day activities. What we’re seeing increasingly is people with anxiety and depression are falling into that band, meaning that reasonable adjustments need to be made for them at work. So, someone who falls into that category has protection under the equality act. So, the other protected characteristics that are relevant in these circumstances are potentially disability because someone may have a condition that means that either they’re not prepared to have the vaccine or they don’t feel that they can. Sex discrimination, for women who are pregnant, or who are trying for children who may not feel that they want to have it. Potentially there was a sex discrimination claim. Religious and belief as well, which we’ve already touched on. Potentially age as well. So, what we’re seeing as well as people who are younger, in that sub 25 bracket making the argument that they feel that they’re fit they’re healthy and they’re young enough to fight off the disease and don’t feel the need to have have the vaccine. It’d be quite a thin basis for a claim to be honest, but just to give you some examples of what those protected characteristics would be.
Now, where the risk of a claim falls here in my view, would be under what’s called “indirect discrimination”. So when you hear people talking about direct discrimination that’s where someone would say for example, “Because you have fallen pregnant, I am dismissing you”. You are dismissing someone because of their protective characteristic, that’s not really the case here, it’s a little bit more subtle. So, indirect discrimination is where you apply a neutral provision criterion or practice which that’s shortened to a PCP. That places a person with a protected characteristic at the disadvantage compared to someone who does not share that characteristic2. So, the most simplistic example of this I often give is, we pick a provision so for example, say if you had an employer who had a building with two or three floors, they applied a provision that said “We’re moving our conference room to the first floor, we don’t have a lift, every staff member must be able to attend the conference room for a morning meeting every day. That applies to everybody, no one is being singled out2, it’s a neutral PCP, however if you have someone who is disabled and in a wheelchair, we think they’re not going to be able to get up to the meeting room on the first floor without a lift, in the same way that everyone else would. So it puts that person at a particular disadvantage compared to someone else. That would be indirect discrimination.
So what we’re saying here, we’ve got the neutral provision which is the regulations, they apply to everybody in the care sector and you’ll likely then to have arguments that someone with a protected characteristic. So perhaps someone who’s pregnant and isn’t prepared to have the vaccine that it puts them at a disadvantage. That disadvantage being the risk of losing their employment. Now, indirect discrimination can be defended on the basis that the steps you have taken as an employer are a proportionate means of achieving a legitimate aim. So, whatever action that you are taking that puts someone to a detriment needs to be proportionate and your ultimate goal needs to be a legitimate one.
The reality is in these circumstances the legitimate aim is to comply with the regulations and comply with the government’s legislation. Otherwise, you’re going to get slammed by the CQC. The proportionate means of doing that you’ll have informed your employees about the regulations and what’s required of them. You’ve engaged with them if they’ve refused and looked at the reasons why they’re refusing and what could be done to their role. Taking those steps before then applying the dismissal, so what you’ve done has been proportionate you’ve not just taken that knee-jerk reaction so again that procedure is very important because it it gives us the ability to access this defence if someone were to bring a discrimination claim.
What about Wales
Wales are not implementing mandatory vaccines.
The commentary that we’re receiving is saying that they’re never going to do it, but you never know things can always change and what we’ve seen is it’s been a very changeable time. That lack of regulation doesn’t mean for those of you that are based in wales that an employer cannot dismiss. The regulations in England don’t provide a cast iron ability to access a reasonableness of decision and the legitimate aim argument. The process is essential, having your documented risk assessment is essential and showing that you’ve exhausted all other options is essential. What’s going to happen in Wales is in my view, there’s going to be a lot more weight attached to those risk assessments, because in England you’re going to have
the ability to say well “Look the law says this, the regulations say this, this is why we’re having to do it in Wales you kind of lose um the reason for why you’re starting the process and start with you’re going to be relying on your risk assessment as to why you consider that the working environment is not safe if there’s people operating in in the area who haven’t been vaccinated. So, what we’re saying is it can’t not be done, but it’s just making sure you start that process correctly. Don’t just start other knee-jerk decisions and make sure that you go through that risk assessment properly and make sure it’s up-to-date.
Letters
Vaccination policy
Introductory letter – if you haven’t already sent one out
Responding to people who are either trying children or pregnant
People who’ve got medical exemption
People who don’t have the exemptions
The invitation to the SOSR meeting
