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The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the Regulations) were made on 22 July 2021 and come into force on 11 November 2021.

The Regulations, as planned, make it mandatory for anyone working in a CQC-registered care home in England for residents requiring nursing or personal care, to have two doses of a COVID-19 vaccine unless they have a clinical exemption.

The requirement will apply to all workers employed directly by the care home, those employed by an agency and working in the care home, and volunteers working in the care home.

In addition to this, people coming into care homes to provide services, for example, healthcare workers, tradespeople, hairdressers and CQC inspectors will also have to be fully vaccinated unless they have a clinical exemption.

The definition of what will be classed as a ‘clinical exemption’ will be clarified in a Code of Practice (“the Code”) that will be issued to accompany the Regulations. The Code and is likely to be published at the end of July 2021.

The 16-week grace period between the legislation being made and it coming into force on 11 November 2021 is to mitigate the impact on the capacity in care homes by giving workers the opportunity to receive both vaccination doses.

The Regulations extend to both England and Wales but will apply to England only.

What does this mean for employers?

Employers should now think about introducing a COVID-19 vaccination policy, however it would be prudent to await the Code before doing so. Any policy should be introduced after discussion with staff. If workers are still reluctant to have the Covid-19 vaccine then employers will need to take steps to lawfully dismiss the worker by 11 November 2021 taking into account any notice period.

A legal requirement for vaccinations will provide employers with a potential partial defence to employment claims as there will be a statutory reason for dismissal, however, this is not carte blanche and to properly defend claims of unfair dismissal and discrimination employers will still need to evidence:

  • That they have considered the reasons behind any refusals and where these are based on protected characteristics (e.g. a disability or medical condition, or a philosophical or religious belief, or for pregnancy-related reasons) that they have taken proper account of these reasons in each individual case; and
  • That they have undertaken a fair process before dismissal. As well as following the Government process by giving staff 16 weeks to change their position, employers should consider alternatives to dismissal where possible. Any concerns raised will need to be properly considered and conclusions documented.

If a claim of unfair dismissal were brought against you as a result of you dismissing an employee due to their refusal to have the two COVID 19 vaccinations, then an employment tribunal would need to consider whether the dismissal was a proportionate and non-discriminatory response to the refusal to be vaccinated. Given the concern around the impact of new variants, this is clearly a relevant factor in justifying ongoing mandatory vaccinations to protect a highly vulnerable group.

The Government has also announced a consultation about extending the vaccination requirement to the NHS and potentially wider and is planning to look at whether or not to make COVID-19 and flu vaccinations a condition of employment in health and care settings.

Our Employment tea are available to assist you with any dismissal should the need arise.

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