The press is full of reports about the government’s plans to make Covid-19 vaccinations mandatory for care home staff.  Under the plans, those working with older adults will have 16 weeks to get vaccinated or face losing their jobs.  It is also reported that the government is considering making vaccinations compulsory for all NHS staff.

What is an older adult care home?  The consultation was about care homes which have at least one person over the age of 65 living in their home.  It will apply to care homes in England which are registered with the Care Quality Commission.

If compulsory vaccinations for care staff become required by law, what are the implications for care providers?  Will it be possible to dismiss an employee who refuses to have the vaccine? The short answer is yes, but the matter won’t be entirely straightforward.  The new law would give an employer a fair reason for the dismissal, but the employee concerned could still bring a claim for unfair dismissal.  In order to successfully defend such a claim, the employer would have to show that the need to take the vaccine was properly explained to the employee, and that a fair procedure was used to dismiss them.

What about discrimination claims?  It will still be open to an employee to argue that a mandatory requirement to vaccinate is discriminatory.  Although being an “anti-vaxxer” is unlikely to be capable of being a religion or belief that gives someone protection under the Equality Act 2010, some employees may have religious objections to having the vaccine.

Vegan employees may object if the vaccine contains animal products, and employees with certain medical conditions may be advised against or choose not to take the vaccine.  Employers will be able to justify a mandatory vaccination policy on the grounds that they are legally obliged to have one but might still have to defend high profile and expensive claims.

It’s not just legal claims which will concern care providers, but potential recruitment issues.  Will people be put off applying for work in care settings which cater for older adults due to the requirement to be vaccinated?  In a sector which experiences difficulties in recruiting (and in some areas of the UK are already seeing the effect of Brexit on recruitment), this potential knock on effect will be problematic.

It is possible that the shortfall of applicants for older adult care settings, will mean that other care providers will get more applications from candidates who have not received the vaccine.  Should these care providers consider a “no jab, no job” policy?  Such a requirement will be potentially discriminatory, but provided the employer has a robust defence to its requirement for vaccination (showing that it has risk assessed the matter and has a duty to protect vulnerable service users) then the benefits of such a policy may well outweigh the risks.

Finally, there’s the effect on diversity.  Analysis of NHS data to the 2 June published by the BBC shows that vaccine take up is lower among ethnic minorities, so a mandatory requirement for vaccination will have a higher impact on the BME population than on their white counterparts.

What’s clear is that a legal requirement to be vaccinated will pose a number of difficulties and is highly likely to lead to litigation.  While the government is unlikely to give an indemnity against any challenges to the legal requirement, it may intervene in claims that are brought as a result of its policy.  The rationale behind mandatory vaccination is clear, but the knock-on effects are anything but.