Employment & HR Article
23 November, 2021
On 11th November 2021, the amendment made to The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, to mandate vaccines for care home staff, came into force. The new legislation, which was passed by the government in July 2021, has given care home staff adequate time to comply and receive both doses of the Covid19 vaccine. However, what happens next for those that still haven't been vaccinated?
The new legislation means that unless medically exempt, anyone working at, or entering a Care Quality Commission registered care home, in a professional capacity, will be refused entry if they have not been fully vaccinated.
In terms of the options available to care homes, when dealing with non-vaccinated employees, care home providers could potentially opt to redeploy staff into non-frontline roles, that is of course providing these are available. Another option could be to put members of staff on paid/unpaid leave until they have received two doses of the vaccine.
The new legislation arguably provides a legal basis for employers to dismiss an employee who is not fully vaccinated. However, dismissal on the basis of not being vaccinated may still be challenged by employees, particularly those that have more than two years-service and any decision to dismiss could give rise to unlawful discrimination and unfair dismissal claims. Each individual case will need to be reviewed accordingly to ensure that any dismissal thereafter, is not deemed discriminatory or unfair.
It is also important that employers take care when policing the mandatory vaccination requirement and address the obvious concerns as to what proof they will need to take from employees of vaccination and how this sensitive data will be stored appropriately, in accordance with GDPR.
Despite the potential challenges, the health care sector looks set to expand the mandatory vaccination requirement. On 9 November 2021, the health secretary, Sajid Javid, made a much-anticipated announcement that mandatory vaccination will apply to all frontline NHS staff and those who work in social care from April 2022.
The NHS and health care sector is already crippled by workplace pressures, such as the growing number of Covid19 cases, particularly as the winter months set in, as well as dealing with the overwhelming backlog leftover by the pandemic. In an industry that has already seen staff shortage concerns, the introduction of this legislation will inevitably bring further challenges to staff retention and subsequent recruitment challenges, which have already been exacerbated by Brexit.
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