From 11 November 2021, all care home workers, and anyone entering a care home, will need to be fully vaccinated, unless they are exempt under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (SI 2021/891) (Regulations).
The regulations couldn’t be any clearer. They state that a care home provider must must not allow a person entry unless they provide evidence that:-
- they have completed a course of an approved Covid vaccine; or,
- for clinical reasons they cannot be vaccinated
There are some exemptions on the grounds, primarily relating to emergency situations.
Operational guidance was published on 4 August 2021 to help support the implementation of the Regulations. The following are of note:
- Expanded guidance on exemptions from the requirement to be fully vaccinated is provided, however guidance around the medical exemption is still being developed and updates are awaited.
- Employers must keep records of staff vaccination or exemption status and keep them up to date; processing of records should meet data protection requirements.
- Care homes should consider implementing a vaccination policy.
- Employers are advised to use the time before the Regulations come into force to engage with their workforce, gather facts about vaccination status and advise of potential consequences of not meeting the requirements.
- Guidance is provided on the procedure that employers should follow with staff who are unable to provide evidence of their vaccination or exemption status, making it clear that all options should be considered, including redeployment to an alternative role where vaccination is not required.
- If redeployment is not available and the employer has adopted a fair process the Regulations may provide a fair reason for dismissal, with notice, due to contravention of a statutory restriction or some other substantial reason (SOSR).
- A care home will not breach the Equality Act 2010 on the grounds of age, disability, religion or belief if it does anything it is required to do pursuant to the Regulations. Therefore, it will not be unlawful discrimination on the grounds of age, disability, religion or belief for an employer to ensure that an unvaccinated non-exempt worker does not enter a care home. This exception may be available where a care home dismisses staff as a result of the Regulations, provided this is done in a fair and non-discriminatory manner. The exception does not extend to race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage or civil partnership discrimination.
So can you be dismissed from a Care Home if you refuse to take have a COVID-19 Vaccination?
Yes, but the guidance is clear that an employer will be expected to consider other options prior to dismissal, such as roles which are only outside. The reality though is that many working in a care home probably aren’t gardeners only, and so are likely to face dismissal.
Will that dismissal be unfair?
No, give the regulations and this guidance, I think it is clear that an Employment Tribunal Judge would consider it a fair dismissal – provided the process was fair and that the employer did explore other options.
But taking the vaccine is against my religion or belief, isn’t that discrimination
The guidance specifically states that a care home will not breach discrimination rules on the grounds of age, disability, religion or belief.
So, while taking it may be against your beliefs, these regulations intend to usurp those beliefs. I understand this will affect Vegans and some Christians; there may be some other religions who do not wish to take the vaccine.
Whether that position is challengable in court on a human rights basis is not for me to say, as it is not my field of specialism. But when we look at cases such as the Asher baker case, that reached the Supreme Court, might suggest that this is not the end of the matter.
Practically speaking, though, it leaves employees with little option. If they refuse vaccination they will not be permitted entry to a care home, and is likely to lead to dismissal. The only thing an employee could do would be to issue an employment tribunal claim, but I’m not hopeful on the prospects there.