Matt's Employment Law and HR Update: 26 January 2022

Government publishes guidance regarding the requirement for workers in health and social care to be vaccinated against COVID-19

From 1 April 2022, providers of CQC-regulated activities in the health and social care sector in England will only be able to deploy individuals who have been fully vaccinated against COVID-19 in patient-facing roles.

The Department of Health and Social Care (DHSC) published?Coronavirus (COVID-19) vaccination as a condition of deployment for the delivery of CQC-regulated activities in wider adult social care settings?(social care guidance) on 20 January 2022.

The following points from the guidance are of note:

• Healthcare settings include hospitals, GP practices, dentists and community services where care is delivered in a person's home.
• In addition to frontline healthcare workers, non-clinical workers such as receptionists, ward clerks, porters and cleaners must also be vaccinated where they have direct, face-to-face contact with patients.
• Volunteers, temporary and agency workers and independent contractors with direct patient contact are covered.
• For existing staff, the last day for first vaccination is 3 February 2022. New joiners after 1 April 2022 must provide evidence of first dose of vaccination at least 21 days before starting work, and then evidence of full vaccination within ten weeks of first vaccination.
• There are limited exemptions for medical reasons, participation in clinical trials and the under-18's, with temporary exemptions for pregnant women and those who have recently tested positive for COVID-19.
• In adult social care, vaccination status can be evidenced using the NHS COVID pass, an EU digital COVID certificate, or a Centres for Disease Control and Prevention vaccination card.
• The guidance provides advice on the steps health and social care employers should take where workers are unwilling to be vaccinated (including consultation, possible redeployment and dismissal).

This is clearly a controversial topic and is causing significant discussion, dispute and conjecture. From an employers perspective though, the rules are very clear. There is currently some political and operational pressure being placed on the government in light of the fact that somewhere between 80,000-90,000 workers in the NHS are thought to not be vaccinated. It is therefore not beyond the reams of possibility that the implementation date may get pushed back, but employers must not rely on this possibility - as it is just that, only a possibility.

If you are an employer that is affected by this, get in touch and we can help start your consultation process with your employees sooner rather than later as otherwise you will be having to pay significant periods of notice pay at the point of termination (if it reaches that) which means that the introduction of these rules not only results in you losing staff, but costs you money as well.

Care Home nurse dismissed for refusing COVID vaccine loses her Employment Tribunal claim

There has been a lot of talk and coverage in the press recently about the forthcoming introduction of the mandatory COVID vaccination requirement for all front line health care workers. This requirement is implemented by legislation on 1 April 2022.

These rules require those workers to have had their first dose by 3 February 2022. Of course, this is not new to those who operate Care Homes as a requirement for all front line workers in Care Homes to be vaccinated came into force in November 2021. We have now seen the first reported case of a dismissal as a consequence of this legislation.

In the case of Allette v Scarsdale Grange Nursing Home Ltd, the Employment Tribunal?found that the dismissal of Ms Allette was fair and not discriminatory.

This case is particularly interesting as the dismissal occurred in January 2021 and as a consequence of a requirement place on her by her employer (the Care Home) to have the vaccination, rather than compliance with the law as the legal requirement for her to be vaccinated did not come into force until November that year.

The ET grappled with the issues of human rights, and specifically the?#EuropeanConventionofHumanRights?(#ECHR) and the UK's?#HumanRightsAct?of 1998 and the general reasonableness as set out in section 98 of the?#EmploymentRightsAct?1996 (the normal reasonableness test for unfair dismissal). The ET stated that:

"the respondent had a legitimate aim for both the management instruction requiring employees to be vaccinated against Covid-19 and the dismissal of the claimant for unreasonably refusing to comply with that instruction. It was not disputed that the key legitimate aim was to protect the health and safety of residents, staff, and visitors to the Home during the Covid-19 pandemic"
        

....and that Ms Allette had failed to follow a reasonable management instructions.

It is important though that we read this case in the light of the information that was known at the time. In January 2021 the COVID situation was rather different to what we know now.

The COVID pandemic was a year old at that time and the third national lockdown had just commenced. There had been reports of widespread illness and death, particularly in care homes during 2020 and Scarsdale Grange Nursing Home itself had just suffered an extensive outbreak, resulting in the deaths of residents. The situation nationally was fast-moving and, given the vulnerability of the residents, Scarsdale was required to do some difficult decision making. In this context, the?#ET?concluded that Scarsdale's decision to make the?#COVID?#vaccination?mandatory for staff and to dismiss Ms Allette for her unreasonable refusal to comply was proportionate in the circumstances.

COVID restrictions in Wales eased

The Welsh government have announced the easing of COVID restrictions. The announcement was made on 20 January 2022 and came into force on 21 January 2022.

The changes are:

• all Alert Level 2 restrictions on outdoor gatherings and events have been removed.
• the restrictions applicable to licensed premises so that the requirement to control entry to premises and for customers to be seated when ordering food or drink will now only apply to indoor parts of the premises.

There was no specific reference to whether government departments of any sort were exempt from holding parties at work...

Menopause and the workplace

On 19 January 2022, the Women and Equalities Select Committee (WESC) heard evidence from employment lawyers:

• Colin Davidson: Co-Chair at Discrimination Law Association, and Head of Employment Law at Edwards Duthie Shamash; and
• Adam Pavey: Director of Employment and HR at Pannone Corporate
• Marian Bloodworth: Partner in Employment Law at Deloitte Legal, and Chair at Employment Lawyers Association

...and no, it wasn't lost of me either that two out of three were men, albeit that the issue was purely legal.

During the session last week there was a discussion as to whether the menopause should be made a legally protected characteristic. The Committee heard that some women face discrimination, including inappropriate comments or missing out on pay or promotions, if they are (or are perceived to be) going through the menopause, regardless of whether they are experiencing symptoms.

Currently anyone experiencing such treatment has to rely on existing legal protections, such as disability discrimination or sex discrimination legislation, to argue their case as we saw in the recent Rooney v Leicester City Council case.

The WESC also heard that both employees and employers have a lack of clarity of businesses' obligations to employees going through the menopause and that increased guidance and awareness of the issues would be helpful.

You can get further information about the inquiry made by the Committee here.

Employer Support Packages

If you are interested in our Employment Law, HR and Tribunal Employer Support Packages, then please download our brochure here.

This article is intended for information purposes only.  It is not intended to provide legal advice and provides information which is correct as at 26 January 2022.  Please contact us for specific legal advice on any of the issues raised in this update. 

Matt Hugett
26 January 2022