This fact sheet was written by legal advisers at Greater Manchester Law Centre following a meeting with Care and Support Workers Organise (CASWO). It is intended to answer care workers’ questions about the mandatory Covid-19 vaccinations for those who work in care or in care homes. It is written for employees and their union representatives.
Whilst GMLC and CASWO strongly encourage individuals to get the vaccination, we agree that compulsory vaccination is a blunt tool. If you are concerned about the vaccination and want to know more, you can find out more information about how the vaccine works here.
When do mandatory vaccination rules kick in and how will they be applied?
The new legislation mandating vaccination for care workers will be effective from 11 November 2021. It requires people working in Care Quality Commission (CQC) registered care homes in England to have had two doses of the Covid-19 vaccination. This means that those working in CQC-registered care homes will need to have had their first dose by 16 September to allow time to have the second dose before 11 November.
If you are not sure whether your care home is covered by the vaccination regulations, you should ask your employer or check whether your workplace is CQC-registered here.
Does it affect all care workers, such as Personal Assistants, or only staff in residential care homes?
The regulations will require those in CQC registered care homes to ensure only fully vaccinated persons enter the premises.
The CQC will seek assurance from new and existing providers that they have a governance process to monitor vaccination and status of staff, ensure staff maintain an up-to-date vaccination status, monitor the vaccination status of all those entering care homes, and make reasonable adjustments where necessary.
The regulations apply to anyone working in a CQC-registered care home. This does not include care workers, including Personal Assistants, working in the homes of people who use their service.
Will rules be different in England, Wales, Scotland and Northern Ireland?
Care homes in Wales, Scotland and Northern Ireland are not covered by the regulations, so workers in these countries will not be under the same obligation to get vaccinated. CQC-registered care homes in England are the only workplaces covered by the regulations.
Is it only care workers and those who deal with care home residents who are mandated to have the vaccine? Or does it also affect other staff such as administrative staff? What about others coming in to care homes, such as tradespeople, cleaners and social workers?
Those working in CQC-registered care homes will need to be vaccinated, including those who do not work directly with residents, such as administrative or reception staff.
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This will apply to most people who enter the care home for work, including:
- directly employed staff;
- agency workers;
- contractors or self-employed people hired to carry out work in a care home, for example tradespeople, occupational therapists or hairdressers;
- volunteers.
Can I get paid time off to get a vaccination?
You won’t be able to get paid time off to get your vaccination unless there is a clause in your contract of employment or an agreement with your employer to pay you. Employers may decide to make such a payment to encourage the uptake of vaccination among staff.
How will I prove that I am vaccinated to my employer? What if there are problems with proving it, such as the ‘data disconnect’, where digital records are delayed or inaccurate?
The Department of Health and Social Care (DHSC) published Operational Guidance which addressed this issue on the 4th August 2021. According to this, the NHS are considering how the NHS COVID Pass service could be used to support registered persons and staff to check and demonstrate vaccination status. This is a work in progress, and you can read more here.
In the interim, they suggest that if you have been vaccinated by the NHS in England you can demonstrate your COVID-19 vaccination records using the NHS COVID Pass service via the following three routes:
- the NHS App
- the NHS website – NHS.uk
- the NHS COVID Pass letter
Your NHS appointment card cannot be used a proof of vaccination status.
If you have been vaccinated in Scotland you can find information on how to obtain a record of your COVID-19 vaccination status at nhsinform.scot. If you have been vaccinated in Wales you can find information on how to obtain a record of their COVID-19 vaccination status at gov.wales.
While some individuals will have been vaccinated outside of the UK, the DHSC are working on a solution to this and will provide further guidance on the acceptable evidence for this as soon as possible.
What if I am unable to access the vaccine due to issues with ID or proving my migration status creating a barrier to healthcare?
GOV.UK guidance says that individuals do not require an NHS number or GP registration to receive the Covid-19 vaccination and should not be denied vaccination on this basis. Individuals who do not have an NHS number or are not registered with a GP are still entitled to free Covid-19 vaccinations.
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There have been reports of some people struggling to access the vaccination via their GP due to ID or address checks when they attempt to register. This is in breach of official guidance to GPs. However, if you are still struggling to register at a GP, you may still be able to attend a walk-in vaccination centre, where you do not need to be registered with a GP or provide proof of address.
If I have a reason not to have the vaccine that is related to a protected characteristic (e.g. disability, religious beliefs), then what is the route that I would take with my employer to prevent repercussions?
If your refusal of a vaccine is related to a protected characteristic, you could receive some protection from dismissal as a result of not getting the vaccine. The protected characteristics in the Equality Act 2010 are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Something counts as a ‘philosophical belief’ if it concerns an important aspect of human life and behaviour and you strongly and genuinely believe in it. The belief must also be acceptable in a democratic society and not conflict with the fundamental rights of others. It is currently unclear whether there are any philosophical beliefs that would offer protection in a case where an employee had been dismissed over failure to get a vaccination.
You would need to speak to your employer to raise this as potential discrimination, preferably after consulting with your union representative if you have one. If you have already been laid off or disciplined as a result of not receiving a vaccine, and you believe that you were objecting on the basis of a protected characteristic, you should speak to Acas or seek legal advice to consider whether you may have a claim against your employer or may be able to get the decision reversed.
Legal Aid is available for discrimination claims in employment. It is a limited scheme and is means tested. You should check if you meet the financial eligibility criteria on the GOV.UK website here: https://www.gov.uk/check-legal-aid. If you do qualify you should be able to get advice under the scheme.
However, for other employment law matters, legal aid is not available. You may wish to discuss this with a legal advisor if you would need help paying costs in a legal case. Also, you can check your insurance policies to see whether you have Legal Expenses Insurance which may cover employment law.
Is it legal for employers to require me to be vaccinated in order to hire me for a new care work role?
The requirement to be vaccinated or medically exempt will apply when a staff member reaches the age of 18.
Employers in any sector can make job offers conditional on proof of having been vaccinated, even outside of the care sector.
This is lawful as long as the employer does not discriminate against candidates who are unable to have the vaccine as a result of their disability or pregnant women who have not yet had the jab as a result of their pregnancy.
Vaccination to work in the Care Sector will be mandatory from the 11th November 2021.
Can an employer choose not to apply the mandatory vaccinations rules?
Generally the answer to this is no. The person responsible for checking who can enter the care home is the care home’s ‘registered person’. This is the person registered with the CQC as the care home’s manager or service provider. They are required to ensure that all people that enter the care home are vaccinated apart from those that are exempt.
From the ACAS guidance the following people are exempt:
- anyone with a medical exemption;
- current care home residents and service users;
- friends and family of a current resident;
- workers who do not enter the care home, for example a gardener;
- someone providing emergency assistance or urgent maintenance;
- members of the emergency services who need to enter the care home to carry out their job;
- anyone visiting a dying resident;
- anyone giving bereavement support to a resident after the death of a relative or friend;
- anyone under 18.
Would refusing a vaccination be enough on its own to get sacked? How should an employer go about the process of dismissal for it to be legal?
Where a member of staff, 18 and over, is not vaccinated and cannot provide evidence that they are exempt, care homes should explore all options. This includes redeployment into any alternative role where vaccination or medical exemption is not required. This could include roles without direct contact with residents outside of the care home (for example at a head office).
Care homes might also need to consider paid or unpaid leave for their staff. This cannot be a long-term solution, because the regulations do not have a time limit. Leave may be considered appropriate where a worker demonstrates intent to get fully vaccinated but has not completed the full course by 11 November 2021. This may also apply where there are delays in obtaining evidence of medical exemption.
Care homes should communicate the timescales they will adopt as early as possible and be clear about what will happen if workers miscommunicated timescales. Timescales will need to allow for any formal process to be followed and for notice of termination to be given if necessary.
Employees who have been continuously employed by their employer (or by associated employers) for two years usually have the right not to be unfairly dismissed.
The regulations may provide a fair reason to dismiss an employee over 18 who is not vaccinated or medically exempt. A potentially fair reason could be:
- the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment, or
- some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held.
Where it is possible, under the contract of employment, to redeploy an employee, these reasons for dismissal may not be applicable. This would be the case when the employee can be redeployed to other duties where vaccination is not a requirement.
Where an employer continues overall to need the same number of employees to carry out the work in question and cannot redeploy everyone who is neither vaccinated nor exempt, this will not amount to a redundancy situation. The reason for termination of employment will be dismissal, not redundancy, and dismissed employees will not be entitled to a redundancy payment. However, in these circumstances, the employer will need to consider how it fairly selects employees for redeployment or dismissal. Selection criteria should be objective and non-discriminatory.
An employee may be fairly dismissed if:
- There is a potentially fair reason to dismiss
- The reason is sufficient to justify dismissal
- The employer has followed a fair procedure
However, not being vaccinated or medically exempt will not in itself amount to misconduct.
If employers in Care Homes are starting to apply the ‘no jab no job’ policy early and threatening to discipline or dismiss workers before the November deadline, is that legal? Do employees treated in this way have any legal rights to challenge it?
In order to ensure you receive the 2 doses of the Covid-19 vaccination before 11 November, many employers may be insisting upon you receiving your first dose by 16 September at the latest. This is because you are expected to be fully vaccinated by 11 November, and there is usually at least an 8-week wait left before the second dose to ensure it is effective.
The regulations come in to force on the 11th November 2021 for employees age 18 and over. Before then the existing rules apply to challenge a dismissal, exercise the right to appeal and if necessary consider taking an employment tribunal claim.
Does all staff being vaccinated mean that employers no longer have to ensure other health and safety measures are in place to prevent transmission of Covid?
It is an employer’s duty to protect the health, safety and welfare of their employees and other people who they come into contact with (including, in this case, care home residents). Therefore, they should be continuing to put in place mitigating health and safety measures to reduce the risk of Covid-19.
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Under the Management of Health and Safety at Work Regulations 1999, the minimum they must do is:
- identify what could cause injury or illness in their business (hazards)
- decide how likely it is that someone could be harmed and how seriously (the risk)
- take action to eliminate the hazard, or if this isn’t possible, control the risk
Assessing risk is just one part of the overall process used to control risks in the workplace. Infection Prevention Control measures such as PPE are still required in residential care settings. PPE requirements will remain in line with current government guidance which can change, therefore, we would advise you to check this beforehand to ensure correct compliance.
If I am dismissed, are there time limits to bring an employment tribunal claim?
The time limit for taking a claim to the Employment Tribunal (ET) is 3 months less 1 day from the date of the act you are complaining about e.g. dismissal/discrimination/unpaid wages.
However, before you can take a claim to the ET you must go through a process called Early Conciliation (EC) this is operated, by an independent, neutral, government funded organisation, called ACAS, their website address is acas.org.uk where you can find a lot of useful information including the EC procedure. You can also start EC by phone on 0330 123 1122.
The purpose of EC is to try to get the parties to reach a settlement, thereby avoiding the need to start an ET claim. If a settlement is reached the terms will be on a document called a COT3 and will be legally binding on both sides.
You must start this process before the ET deadline expires. You should not leave doing this until the last minute, do so well in advance of the deadline. EC lasts for up to 6 weeks and during the EC process the ET deadline is paused. After EC you should have at least 1 month to file a claim if there is no settlement.
If I am dismissed due to refusal to be vaccinated, will I be entitled to claim benefits?
Everyone can claim benefits, the question is whether you are entitled to them.
Loads of people conflate “claim” and “entitled” and it pays to be crystal clear: a person claims a benefit, the DWP makes a decision, then the claim disappears and a person is either entitled to it or they are not.
We would always advise a person who might be entitled to a benefit to claim it and challenge any adverse decisions they do not agree with. A welfare benefits advisor can help you apply for benefits and appeal decisions you think are unfair.
Will my Universal Credit get stopped if I can’t find a job due to my experience being in a sector I can’t work in anymore without a vaccine?
These decisions will likely fall down to the individual decision makers to decide rather than being DWP policy.
The question will be whether you’ve taken “all reasonable steps” to get work, more work or better paid work. Whether the government are going to say that a vaccine is a “reasonable step” has not been discussed openly. However, historically medics have always railed against mandating treatment through Jobcentre Plus. Currently, there is no policy prescribing a vaccine as a “reasonable step” and no indication that this will become the case. Generally, the government has not taken mandating treatment lightly even within the sickness benefit system, and have never done so despite provisions existing that would allow them to since the welfare system was introduced in 1946.
Universal Credit and Jobseekers Allowance can be sanctioned for up to 3 years if you cease paid work without good reason. In theory, this could be used to penalise people who have lost work due to their vaccination status, but as stated above, there is no indication as of September 2021 that this is likely to be introduced as a policy. Current policy as of September 2021 within Jobcentre Plus is to not impose sanctions for longer than 6 months.
We encourage all employees to join a trade union. Trade unions allow for workers to fight collectively for changes to pay, conditions and policy in the workplace. They can also offer individual legal advice and representation where applicable. To find a trade union appropriate for you, visit: tuc.org.uk/joinunion.
If you live in Greater Manchester, you are not in a trade union, and you need legal advice relating to your employment or benefits, you can Greater Manchester Law Centre on 0161 769 2244 or email reception@gmlaw.org.uk.
