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Can I make it a requirement for my carer to have the vaccine?

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If you employ a Carer or Personal Assistant, the past year might have been difficult and worrying as you continued to need care throughout the Pandemic. With several Coronavirus vaccines now being rolled out across the UK, you might be keen for the people providing your care to receive the vaccine so that you can feel more confident that the risk of either you or them catching the virus is significantly lowered.

Since the vaccination programme began, we have received the same sort of question many times from those employing carers and the services assisting them with their Direct Payments:

‘Can a carer be forced to have the vaccine?’

‘Can I make it a requirement for my carer to be vaccinated?’

‘Can I sack my carer if they refuse to be vaccinated?’

We asked Peninsula, the providers of our Employment Law and Health & Safety advice, to clarify what is allowed from an Employment Law point of view. Here’s what they had to say:

“With regards to mandatory vaccines, the short answer is no. Making it mandatory for an employee to have the Covid vaccine or in any way pressurising them to have the vaccine can cause potential problems for an employer. It is unlawful for anyone to be compelled to undergo any medical treatment (including vaccinations) without their informed and voluntary consent.

It is also important to take into account someone’s anti-vaccination position which could amount to a protected philosophical or religious belief under the Equality Act 2010. Many vaccines use pig gelatine, which could cause problems for several religious groups. The vaccine is also not recommended for those who are pregnant, breastfeeding or planning to get pregnant, and some individuals are advised not to have the vaccine due to a medical condition.

What about preventing someone for working if they have not had the vaccine or disciplining them for not following a reasonable management instruction to have the vaccine? Any such steps should be considered very carefully before being implemented. If an employee insists they do not wish to have the vaccine it is important for any employer to understand the reasons why. If it is because of a disability/protected religious/philosophical belief, and the employer imposes any form of disciplinary sanction or prevents them from working, there is a risk of a direct or indirect discrimination claim. Equally there may be the risk of a constructive unfair dismissal claim if an individual resigns in protest.

That said, it is important to take account of the workplace and nature of the business. Those who work with clinically vulnerable people, such as in residential care homes where the risk of infection may be higher, may have a more persuasive argument to mandate employees to have the vaccine before being allowed to work. It would absolutely be necessary to undertake an updated risk assessment and if that concluded that having a vaccine is the most reasonably practicable way of controlling the risk of COVID-19 then, in theory, they could order the vaccination as a health and safety requirement. It will still be necessary to understand the reasons for any objections, and to take those into account. Clear communication and consultation with employees about the reasons for the policy would help an employer who wishes to go down a mandatory route.

Provided the employer has justification that would satisfy a tribunal to make the vaccine mandatory, the failure to do so by an employee would amount to a failure to follow a reasonable management instruction which could lead to a fair dismissal. An employee who unreasonably refuses to be vaccinated could be fairly dismissed, but an employee should be given the opportunity to set out their reasons for the refusal and the employer would need to show they have considered those reasons. An employer considering dismissing an employee as a result of a refusal to be vaccinated will also need to give careful thought to whether there are any alternatives to dismissal.

Advice should be taken at each stage of the process, and prior to any dismissal or any potential act that may amount to a detriment, such as refusing to allow someone to work.

As the vaccine becomes more widely available it is likely the government will issue guidance to employers.”

This advice was provided by Peninsula on 19th January 2021.

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