Care staff vaccinations: how should employers handle employees who refuse to get vaccinated?

The government’s legislation on mandatory vaccinations for anyone entering a care home (unless exempt) will come into force on 11 November 2021.

This presents a relatively short deadline for care home employers to ensure their staff are fully vaccinated by the deadline. And it also presents an unprecedented challenge; how should employers handle employees who refuse to get vaccinated and are not exempt?

The government estimates that 40,000 staff will leave the care sector by the 11 November deadline as a result of the new rules, with one-in-four care home staff reported to disagree with mandatory vaccination. Navigating this is an intimidating task for any care home employer – especially when considering the need to complete the process legally and fairly.

That’s why we’re making it as straightforward as possible for you. Here’s your guide to handling employees who refuse to get vaccinated.

Explore all options

Government guidance gives detailed information on how employers should deal with employees who refuse to be fully vaccinated and are not medically exempt. It says that in these circumstances they should explore all options – including redeployment into any alternative role where vaccination is not required, such as roles at a head office.

The guidance also suggests considering paid or unpaid leave for staff but recognises that this can’t be a long-term solution. It could be an option where the employee agrees to be vaccinated but this can’t be completed by the 11 November, or in cases where there is a delay in receiving confirmation of medical exemption.

Dismissal

If there are no alternatives, you will have to consider dismissal, but must always make sure you’re complying with “employment and equalities law and adhere to good employment practice”. The guidance identifies two potentially fair reasons for dismissal, namely:

• the employee can’t continue to work in their position without the employer breaking a duty or restriction imposed by or under an enactment, or
• some other substantial reason of a kind as to justify the dismissal

Dismissals should be made with notice (or pay in lieu where appropriate). It’s worth noting that while not being vaccinated does not amount to misconduct, dishonestly providing false evidence of vaccination is misconduct – likely gross misconduct.

If there’s a potential alternative role which doesn’t require vaccination but has more than one candidate, you’ll have to consider how you fairly select employees for redeployment, and this should be done in an objective and non-discriminatory way.

Check out our free guide on dismissing someone legally here.

Key points to establishing a fair dismissal

You need to follow a fair procedure when dismissing employees. This includes:

• consulting with the employee
• warning the employee of the risk of dismissal if they don’t prove they are vaccinated or exempt within specified timescales
• giving the employee an opportunity to explain their circumstances and any reasons they should not be dismissed (this should be at a formal hearing)
• allowing the employee the right to be accompanied to this hearing by a trade union representative or work colleague
• taking and sharing notes of any formal meetings, to avoid misunderstandings or disputes about what was said
• exploring alternatives to dismissal, for example redeployment opportunities where vaccination isn’t required
• acting consistently where cases are alike, but also considering relevant differences between cases
• deciding on an outcome and communicating the outcome to the employee
• providing a right of appeal against dismissal

What if an employee gets vaccinated or an exemption after dismissal?

The guidance advises that care homes should cover in their vaccination policy the situation where a dismissed employee appeals against dismissal and completes a vaccination course or gets a medical exemption after dismissal but before an appeal is heard.

This should cover whether they will reinstate employees in these circumstances, and whether they will pay back pay on reinstatement. However, these cases should still be looked at on a case-by-case basis and we would recommend that you take advice in these circumstances.

Need expert advice?

This dismissal process can be complex and requires you follow Employment Law rules very closely. It’s even more complex when considering dismissal in the wake of these new regulations in care.

We always advise that you seek professional guidance when it comes to the dismissal process. If you’d like the support of our team of care and Employment Law experts, just give us a call today on 0345 844 1111 to talk through how we can help your care service.

Temporary self-certification of medical exemption scheme

On Wednesday 15 September the government announced a temporary scheme, which allows people working and volunteering in care homes in England to temporarily self-certify that they’re medically exempt from compulsory vaccination requirements.

According to the guidelines, people working or volunteering in care homes “who have a medical reason why they are unable to have a COVID-19 vaccine” will be able to self-certify that they meet the medical exemption criteria.

The temporary self-certification will expire 12 weeks after the permanent exemption scheme is launched (which they say is “imminent”). A letter announcing the scheme was sent to all care home providers, and provided a (non-exhaustive) list of scenarios where temporary, self-certified medical exemption will be applicable for care home employees.

As of 24 September, we’re still awaiting the official details and guidance on the medical exemption scheme outlined in the original guidance.

How will compulsory vaccination in care home settings affect the recruitment process?

Any new employees will also need to be fully vaccinated by 11 November. You should tell prospective employees about the vaccination requirement at the start of any application process and should check vaccination status during the recruitment process. The guidance makes it clear that new recruits can only start work when they have provided evidence of their vaccination status or a medical exemption.

The rules also apply to anyone entering a care home for a job interview and therefore if someone intends to have the vaccination but is not yet vaccinated, the interview should take place outside of the care home or remotely (via video call or telephone).

How can Citation help?

This is an unprecedented and potentially complicated time for care home employers. Our experts are here to help, with over 25 years of experience in the industry.

We also have key relationships with Care England, Scottish Care, UKHCA and over 25 regional care associations, so you can trust that we know your industry and the unique challenges you’re facing.

If you’d like to benefit from 24/7 access to our team of care and Employment Law experts, as well a suite of care-specific services, simply fill out your details in the form on this page or give our team a call on 0345 844 1111 and we’ll be in touch to discuss your needs.