Mandatory care vaccinations come with rights and risks

Coronavirus vaccinations are now mandatory for care home staff in England and ministers are considering extending compulsory vaccination measure to all NHS staff.

Health and social care secretary, Matt Hancock, said the arguments in favour of protecting patients from potentially infectious staff now outweigh those that allow health workers the right to choose whether or not to have either immunisation.

However, The British Medical Association has warned that while they want all NHS staff to be vaccinated, compulsion is a blunt instrument that carries its own risks.

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Matt Jenkin, partner and head of employment law at Moorcrofts, said making COVID vaccinations compulsory for those working in older adult care home homes, is likely to prove a highly contentious issue. 

He told HR magazine: “I can foresee employees and trade unions seeking to challenge any such requirement with claims under European Human Rights legislation and for discrimination very likely. 

“A significant issue is that if employees in this sector refuse or are unable to have the vaccination, the expectation is that they will be redeployed.”

However, Jenkin said for many employers in this sector redeployment is not a realistic option which would leave them having to dismiss potentially a significant number of employees

“Not only does this raise the prospect of a swathe of unfair dismissal claims but it also presents care home providers with the practical issue of finding replacement staff who do satisfy the vaccination requirement in an area which already faces recruitment challenges,” he said.

Sophie Forrest, founder and managing director of HR support company ForrestHR, said mandatory vaccinations will create peace of mind for residents and their relatives, but raise a whole heap of questions and issues for managers and HR professionals. 

Speaking to HR magazine she said: "Managers and HR teams should continue to put effort into encouraging voluntary take up, as this is the easiest route to navigate.

"The example of Barchester Healthcare is interesting here; they led the industry by saying in February all new staff would need to have the vaccine, with a deadline of 23 April for existing staff to get it.

"They have run massive engagement programmes, including arranging a Zoom meeting with a professor of immunology to answer staff queries, and now report that 99% of their staff have opted to have the COVID vaccine.

Forrest said effective engagement and encouragement like this is the best policy and should be the first strategy.

The introduction of mandatory vaccination raises a range of complex employment, legal, ethical, and practical questions for healthcare trusts however. Saffron Cordery, deputy chief executive of NHS Providers, said: “Trust leaders understand the need to protect patients and staff in healthcare settings by ensuring that vaccination rates, which are key in stopping the spread of contagious and deadly infections, are as high as they possibly can be.

“There are different views about mandation within the trust leadership community and we will reflect those views in our responses to the consultations when they are published.”

Cordery explained many trust leaders will ask whether the introduction of mandatory vaccination for the flu and COVID-19 jab for NHS staff is the right approach to take at this point. 

“There are alternative approaches, such as continuing to invest in individual conversations and requiring a flu or covid-19 injection as a condition of employment for all new entrants to the NHS.

“This is, of course, very different to retrospectively imposing this condition for all existing employees.”