By Olga Crosse
(Fulcrum Care HR Consultant)
Since the start of the Covid vaccine roll out we have been asked by a lot of our clients who operate in the Care Home space ‘what should we do with some staff who are refusing to have the vaccine, can we force them to?’.
According to Andrew Gregory of the Sunday Times it is expected that between 6% and 8% of the 1.5 million people who work in social care will refuse the vaccine. It has been reported that the National Care Association (NCA) is taking a legal opinion on whether or not care home staff can be ‘made’ to accept the vaccine as they are concerned that as many as 40% of care home staff may refuse the vaccine. On the plus side Nadra Ahmed Chairwoman of the NCA has said that between 50% and 60% of care home staff will definitely have the vaccine. So where does a care home provider stand legally?
Where do you stand legally with the Covid vaccine?
There is no simple answer to that, as a rule you cannot force anyone to accept the Covid vaccine if they do not want to and there is plenty of legislation that protects that right e.g. The Public Health (Control of Disease) Act 1984 specifically states that a member of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations. An employer may fall foul of the Equalities Act 2010 if someone objects on religious or other grounds not to mention breaching Article 8 (right to family and a home life) of the Human Rights Act.
Is there anything else that you can do?
The Health & Safety at Work Act 1974 which states that employers have a duty of care to ensure a safe working environment might actually go some way in solving the Covid vaccine conundrum for care homes. Basically, employers have to ensure that the people they care for are not exposed to any risks. In that case, it could be deemed reasonable for a care home employer to insist that employees are vaccinated in a care home setting, in order to protect the residents that are being cared. Care Home employers could even make that a pre-condition of employment, which according to Lee Peart of CHP (Care Home Professional), Barchester Healthcare have done just that, and said that they won’t hire anyone who refuses to take vaccination on non-medical grounds. They have made it a condition of employment for any new hires and that is acceptable in that context, however as always we urge employers to proceed with caution before they do anything like that and always take HR and legal advice.
Consultation and communication with care home staff
Persuasion is always better than mandating anyone to do anything they don’t want to do. As with most things, it’s the fear of the unknown, and lack of communication that scares people the most. Therefore, we recommend care home owners (and employers in general) consult with their staff, listen to any concerns, act on those concerns and put measures in place to protect them to try and persuade nervous or dissenting employees to actually take the vaccine.
What should you do as a last resort?
As a last resort, if consultation and persuasion doesn’t work, care home employers could then take the nuclear step and specifically ‘instruct’ the employees to take the vaccine (as the vaccine is there to protect the residents and the staff, this could be seen as a reasonable management instruction) and any refusal to do so would be seen as ‘refusing a reasonable management instruction’ which is a disciplinary offence, which could potentially lead to an employee’s dismissal. We would urge caution before taking this route and try as much as possible to get consensus and agreement first. It is always better to persuade than to impose and legally a lot safer.
Other employers outside of the care home sector need to be very careful in insisting employees take the vaccine (Pimlico Plumbers springs to mind) and making it a condition of employment. Insisting might not be seen as reasonable in any other context and again might be in breach of a number of pieces of legislation, and you could be sued, so if you are a care home owner be sure to proceed with caution and to take HR and legal advice before you take any actions outlined above.
Fulcrum Care Ltd is a dedicated management support consultancy for care homes. Whatever the nature of your query, whether relating to help with a CQC inspection, improvement programmes, care compliance activities, best practice advice or management support, please get in touch for an initial discussion on finding the right solution for you and your care home.