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Into Perspective: Mandatory Vaccines
What are the implications for the care sector if vaccines became mandatory?

The social care sector has been awaiting the Government’s decision relating to mandatory vaccinations for the care workforce, following the alleged leaking of a paper, revealing that Boris Johnson and Matt Hancock had agreed to put in place legislation to make COVID-19 vaccination mandatory for social care staff.

The Government launched a consultation, to collate responses and opinions on the proposal. Although a statement is yet to be issued by The Department of Health and Social Care (DHSC) confirming its policy that vaccinations will in fact become mandatory, the sector has shared its concerns.

This feature was originally published in the May issue of CMM and is being updated in line with the Government announcements.

Legal challenges

The obstacle most frequently raised by the sector has been the legal implications of introducing mandatory vaccinations. In particular, the argument that a law of this nature would restrict an individual’s human right to respect for private life (under Article 8 of the European Convention on Human Rights) which includes the right to decide whether to undergo medical treatment. In a broader sense, the sector should be concerned that individuals may choose to refuse vaccination for several other legitimate reasons, or protected characteristics. These include pregnancy or breastfeeding, religious reasons, disability or allergy, or various ethical reasons such as vegans opposing any jab that may contain animal products. Although the latter is irrelevant as far as the UK’s current approved COVID-19 vaccinations are concerned, this does not rule out any future vaccinations should the current proposals be written into law.

For these reasons, it would be unquestionable to think that this proposal would be made into law without significant opposition from some within the sector. Therefore, one question to raise is what is an appropriate response to those who refused mandatory vaccination? Careful consideration and robust procedures must be undertaken to ensure that these instances would be dealt with sensitively and empathetically. In addition, providers would be eager to ensure that compliance with any such law would not leave them vulnerable to a barrage of legal challenges from their own staff. This would only serve to twist the knife in a sector already facing staffing shortfalls.

Recruitment practices

Another implication of introducing mandatory vaccines relates to recruitment. Specifically, how providers would manifest such legislation into their recruitment policies and how it would impact on workplace issues such as but not limited to applications, interviews and disciplinary actions. To avoid unlawful practices, any legislation of this nature would need to be accompanied by comprehensive guidance for providers, clarifying any uncertainty relating to vaccinations and recruitment.

A clear barrier limiting recruitment opportunities for the sector in the wake of this legislation passing would be the Government’s current vaccination programme. With current estimations targeting the 31st July for all adults in the UK to have been offered their first vaccination dose, the proposed legislation would logically dictate that providers would likely be unable to advertise social care vacancies to those aged 18-49 until this time. This equates to approximately 50% (50.4%) of the UK’s adult social care workforce in September 2019, according to Skills for Care.

Whilst on paper, it represents a seemingly attractive solution to further control the rate of COVID-19
infections in this country, in practice, legislation to introduce mandatory vaccinations in the social care sector has a multitude of largely negative implications. Should the Government decide to pursue the proposed legislation further, both implications for legal challenges and employment procedures simply cannot be ignored.

Respect the wishes of the workforce

Firstly, if vaccinations of any kind are to be made mandatory, there must be a parity of expectation and legislation between social care workers and their counterparts in the NHS. Any proposals must make clear that we would not be putting such additional restrictions or requirements on them, that are not also implemented on the healthcare workers in the same way.

Secondly, and perhaps most importantly, is the contradiction between the expectations we put upon the social care workforce and how they are remunerated and perceived. We cannot continue to put additional requirements on social care workers unless they are recognised as a professional workforce and paid wages that represent this professionalism. They cannot be subject to professional expectations and yet not paid appropriately – social care careers are still widely perceived as ‘easy’ and this perception has led to the workforce being undervalued and underpaid as a result of this perceived lack of professionalism.

It also needs to be recognised that there is huge anxiety felt by much of the social care workforce that in the advent of experiencing side effects after receiving a vaccine, they will be forced to take time off work. With low pay endemic throughout the sector, and many social care workers facing in-work poverty, this is a very real concern. Losing the income from just a couple of shifts can make the difference between survival and crisis – and can put care workers in a spiral towards debt, rent arrears and financial emergency. The Government must be sensitive to the issues faced by social care workers in this regard, and measures must be put in place to mitigate the impact of losing shifts – for example, money to be set aside to cover the costs of the missed shifts, instead of care workers having to rely on Statutory Sick Pay.

Finally, we must be prepared to have open conversations about the valid concerns and worries of social care workers, looking at the origin of these concerns and how they can be best addressed rather than merely enforcing legislation. Two-way dialogue where social care workers’ voices are heard, will ensure that they feel listened to, and respected. In similar instances where such conversations are had, take up of vaccinations has been markedly higher.

Vaccinations, and certainly the COVID-19 vaccines in particular, represent a light at the end of a very dark tunnel, but we must not forget to consider the needs and concerns of those who we may be asking to take them.

Karolina Gerlich, Executive Director, Care Workers’ Charity

Legal complexities are plentiful

When dealing with the challenges surrounding vaccines, care providers must communicate with employees to understand their concerns. This can enable providers to identify the reasons for their views and whether they may be based on misinformation.

Education is key in this situation. Care providers can consider directing employees to myth-busting resources, while explaining how vaccines protect staff and care users. Financial incentives should be avoided. However, providers can utilise the Adult Social Care Infection Control Fund to cover the costs of paying workers to receive their COVID-19 vaccine.

In terms of recruitment, an individual currently has the ability to bring an Equality Act-related claim if refused a job due to not being vaccinated where they are at a particular disadvantage due to factors such as a disability, pregnancy or belief. Individuals can’t, however, bring a free-standing Human Rights Act claim against a prospective employer. A restriction on Human Rights can be justified when necessary, for the protection of public health. As it stands, it will be difficult for the Government to mandate the COVID-19 vaccine for care workers because those available cannot completely stop transmission and risks can be managed in other ways. Wherever there are people coming into the care setting who do not have to be vaccinated, for example, visitors, the ‘necessity’ argument will also be undermined.

The fact that COVID-19 is being managed in other ways, such as by utilising PPE, has a bearing on what is a reasonable management request. Unless solely relied on to mitigate risk, it is hard to say that it is a reasonable management request to force existing care workers to be vaccinated. Should the Government enforce mandatory vaccination for care workers, it would need to prove that it is a necessary step in order to protect public health – overturning aspects of the Public Health (Control of Disease) Act 1984.

The Government hasn’t announced anything official about mandatory vaccination, but the reports are that staff working in care homes will be given 16 weeks to be vaccinated or face being redeployed away from front-line care or losing their jobs.

If this is true, the chances of care homes having roles away from front-line care to move their staff into is extremely limited, so this is likely to mean all care home workers who refuse vaccination being dismissed. This could have a significant impact on the continuity of care in some areas where vaccine take-up has been low.

Mandatory vaccination has split opinions between care home providers and will be welcomed by some providers. This policy is, in my view, a reflection on how the Government views social care as a second-class citizen to health.

The consultation results on mandatory vaccination are yet to be published and I haven’t seen any compelling evidence that proves mandatory vaccination is necessary in care homes but not necessary in health care settings or in domiciliary care or supported living settings.

We don’t know yet whether the policy would include exemptions for those who cannot be vaccinated for health or belief-related reasons. Providers we work with who have introduced mandatory vaccination for new staff, have been careful to make allowances for anyone who cannot be vaccinated because of a particular protected characteristic.

Without a compelling evidence base, I consider mandatory vaccination for all care home staff could be subject to legal challenge and I would expect a judicial review to be mounted by unions supporting workers in the sector.

Ultimately, if the Government mandate vaccination, care home providers are likely to be able to fairly dismiss staff who refuse the vaccine but at what cost to the sector? Skilled and dedicated care workers with genuinely held fears about vaccination may be lost to the sector, fuelling a new crisis with a shortage of sufficiently skilled and experienced staff to deliver safe care, increasing agency use, spiralling costs and increasing infection risk.

My view is that mandatory vaccination of care home staff now is the wrong move at the wrong time. It will be welcomed by some in the sector because of the perceived certainty it will bring, but if the policy subsequently falls down on human rights grounds it will be social care providers left carrying the cost. In the meantime, providers should not change their approach to mandatory vaccination for existing staff ahead of a formal Government announcement.

Matthew Wort, Partner, Anthony Collins Solicitors

About Karolina Gerlich

Karolina Gerlich is the Executive Director of The Care Workers’ Charity and has been a care worker for over twelve years. Leading the CWC since March 2020, Karolina has already had a huge impact, in…

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creasing the CWC’s efficiency, platform and support giving capacity. She is proud to represent the social care workforce and embodies the mission that no care worker should face hardship alone.

About Matthew Wort

Matthew Wort is a partner in the employment and pensions team at Anthony Collins Solicitors. Matthew leads the firms work in the health and social care sector and loves being given challenging situati…

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ons to resolve and identifying commercial solutions. Matthew mainly works with clients in the health and social care and social housing sector.

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