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New legislation

From 11 November 2021 you are required to have a Covid 19 vaccination if you work in a care home.  The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 come into force, compelling care-home owners to ensure that workers are vaccinated against Covid 19. There is really only one reason for not enforcing compulsory vaccination, which is for clinical reasons.

There is a judicial review challenge to the Regulations, which at present has reached the stage of a pre-action open letter being issued.  Such a judicial review will inevitably take time, so once again I’ll say “watch this space”.

In the meantime, the care homes are bound by the Regulations, until such time as the legal challenge may change the position.

So, what does a care home employer do if they have a pregnant employee who refuses to have a vaccination?  Do they have a fair reason for dismissal?  Would that dismissal be discriminatory? What do you do if the pregnant employee fears for her unborn baby?

Information sources on vaccines

There are sources that are generally thought to be reliable for information about vaccines.  The Green Book is produced by Public Health England.  We also have the government website gov.uk providing us with their latest facts and figures and knowledge.

Gov.uk states that vaccines present no specific concerns for safety in pregnancy.  The Green Book states that there is no known risk associated with giving vaccines in pregnancy.  Public Health England advises us that the specific type of vaccine used against Covid-19 is one that does not replicate.  It enables the body to produce cells to fight off the virus but doesn’t contain an active virus.  Clever.

Taking the question about discrimination first

Any action taken by the employer in this scenario would be because of the employee’s fears and not because of her pregnancy.  The test for whether or not something is an act of direct discrimination is that the employee is treated less favourably because of a protected characteristic.  None of the protected characteristics include such a fear, and therefore this case would likely fall on the first test.

There are other types of claim in the Equality Act 2010, of course.  However, in a case for indirect discrimination the claimant cannot rely on the protected characteristic of pregnancy. There are also claims for harassment and victimisation, which as an employer you should be aware of and take all steps to avoid.  There are also different protected characteristics, including philosophical belief.  However, this is complex and difficult to litigate. A belief that vaccination should not be enforced is unlikely to succeed under the current legislation. In short, this is unlikely to be held to be a philosophical belief.

As for a fair or unfair dismissal

The employer as always should act reasonably under all circumstances.  The procedure to follow – in very brief terms – the employer should invite the pregnant employee to a meeting, give them the right to be accompanied, make the invitation in writing and say what they want to discuss.  There should be a reasonable investigation looking at the effect on the employee and the business.  The meeting includes a discussion with the employee about her reasons for the concerns and the refusal to be vaccinated.  Alternatives to dismissal should be fully considered and the employee should be asked for suggestions, probably in a second meeting.  When inviting to a meeting, the employer should state that one of the possible outcomes is termination of employment.  Having heard all issues, including consideration of alternatives to dismissal and the employee’s reasons for not wanting to be vaccinated, decide whether the only option is dismissal and give the employee the right of appeal.  If all of these steps are taken and can be shown evidentially, the employer has a good chance of successfully defending a claim for unfair dismissal.

 

If any guidance is needed on this topic, please give us a call.

This update article is being penned at the end of October 2021, and we are still in a situation where many things change frequently.  Please check the most up to date position as and when you read this – or give us a call and we’ll let you know.

 

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