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Can employers enforce a mandatory Covid-19 vaccination programme?

View profile for Terri Li
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The administration of vaccines to vulnerable adults who lack the mental capacity to consent

On 11 November 2021 the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the regulations’) came into force. This follows months of consultations and guidance from the UK Government in their attempt to transition the care sector into this new model.

It will become a legal requirement for those within the care sector, and third party sectors that operate within this structure, to have all staff and volunteers vaccinated in order for them to carry out their role. The regulations require registered persons of all Care Quality Commission (CQC) registered care homes (which provide accommodation together with nursing or personal care) to ensure that a person does not enter the indoor premises unless they have been vaccinated. This is subject to certain exemptions.

Business that operate outside of this sector

Whilst guidance for those that operate within the care sector is clear, many employers from different industries are now asking what they can be doing to protect their employees and service users in the continued fight against Covid and it is clear that at the present time these regulations do not extend to other industries or sectors.

A recent survey commissioned by Indeed Flex found that 70% of HR directors were planning to implement vaccine mandates in the workplace, with 22% requiring vaccinations to be required even where employees can evidence potential exemptions.

That means that currently whilst employers that sit outside of the sector that is catered to within the regulations can certainly encourage their staff to receive the vaccine, vaccinations remain voluntary.

Can I enforce a mandatory vaccination programme?

An employer who is not mandated by the regulations and requires employees to receive a vaccination could potentially be open to the risk of a discrimination claim on the grounds of disability, age, religion or belief. In addition, if an employer were to dismiss an employee for the reason of refusing to take a vaccine, they may be opening themselves up to an unfair dismissal claim, assuming that the employee has at least two years of service.

ACAS have however recently released guidance that supports employers encouraging discussions with employees regarding vaccination status within the workplace. In summary, the guidance advises employers of ways to have discussions with employees about being vaccinated, recommending employers to include recognised trade union or staff representatives in any discussions.

It is not currently prohibited for employers to introduce vaccination policies; however it is advised that employers discuss any plans to implement policies on vaccination with a professional legal advisor, to ensure that they are balanced and fair, having in mind employee’s human rights, ethical concerns and potential for discriminative practice.

Mandatory versus voluntary

The Chartered Institute of Personnel and Development (CIPD) has set out guidance for employers that clarifies that vaccination policies should take into account the legal aspects, for example, with respect to discrimination claims, as well as providing information on data protection and health and safety duties. A policy can potentially be objectively justified as a means of achieving the legitimate aim of staff health and safety. Vaccination policies may be a proportionate way of achieving those aims, although this will depend upon the way in which they are operated and the impact on the individual employee.

A vaccination policy can be part of the overall Covid-19 secure steps towards maximising the number of employees who can attend work safely. However, it is part of the overall matrix and not a substitute for other measures.

Organisations that are not mandated by the regulations should follow a voluntary approach when setting out its aims and objectives in a policy. As well as the legal and financial risks of adopting a mandatory approach, engaging employees with a voluntary approach will build trust and encourage employees to appreciate the benefits for themselves and others. The policy can help explain the benefits of vaccination and how employees can contribute to wider public health by protecting themselves and other employees and the wider community by being vaccinated.

NHS vaccine mandate

Since the introduction of the regulations, it has been announced by the government that the requirement to be vaccinated will extend to NHS frontline staff and those within the social care sector. This will be applicable to doctors, nurses, dentists, domiciliary care workers, volunteers and ancillary staff like porters and receptionists who may have contact with patients but are not involved directly in their care. This will come into effect by 1 April 2022 and at this point it will be expected that those caught by this guidance will be double vaccinated. It appears that only those who do not have face-to-face contact with patients or who are medically exempt will not be required to get vaccinated.

If you would like to speak to a legal advisor to discuss the drafting, implementation or potential for, a vaccination policy to be implemented within your company we would encourage you to liaise with the employment law team at Stephensons on 0161 696 6170.