Dismissal of unvaccinated care home staff
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (SI 2021/891) were made on 22 July 2021 and come into force on 11 November 2021. The regulations, which apply in England only, require workers deployed in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated unless they are exempt.
With the deadline for vaccinations looming quickly decisions will shortly need to be made in relation to any staff that are not vaccinated and will not be vaccinated by the 11th November.
Employees can only be fairly dismissed if the reason for dismissal is one permitted by law and the process followed is fair and reasonable.
Statutory Restriction is a potentially fair reason for dismissal and the Health and Social Care Amendments requiring vaccination will impose a legal requirement on Regulated managers. The dismissal of a care home worker who is not fully vaccinated (and is not exempt from the requirement to be fully vaccinated under the Health and Social Care Amendment Regulations) may be fair on the basis that the employee cannot continue to work in the position they hold without either the employer or the employee contravening “a duty or restriction imposed by or under an enactment.”
Prior to any decision to dismiss being made an employer must follow a fair procedure and ensure they:
- Consult with the employee.
- Warn them of the risk of dismissal if they do not provide evidence of vaccination or exemption within specified timescales.
- Give the employee opportunity to explain their circumstances and any reasons they should not be dismissed. This should be at a meeting. If a meeting is not possible then it can be held virtually or by telephone.
- Allow the employee to be accompanied.
- Take and share notes of any formal meetings.
- Explore alternatives to dismissal, such as redeployment or homeworking.
- Decide the outcome and communicate this to the employee.
- Provide a right of appeal.
Any decision to dismiss must be reasonable in the circumstances and any employee that is dismissed will be entitled to notice of termination.
It will be important to consider what approach should be taken in circumstances where any employee obtains the first dose of the vaccination prior to 11th November but is not fully vaccinated by the deadline, decides to get vaccinated following termination but before any appeal takes place or is delayed in obtaining a medical exemption. There will be a requirement to consider whether to put the employee on unpaid leave, redeploy them or provide offsite work or training until such time as they do evidence full vaccination or certification of exemption.
Employers should bear in mind that once notice has been given it cannot be retracted without the agreement of both parties.
If you do have employees that are required to be vaccinated and are not, we are able to provide advice and guidance regarding your options, just call one of the team on 01274 864999
Dismissal of unvaccinated care home staff
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (SI 2021/891) were made on 22 July 2021 and come into force on 11 November 2021. The regulations, which apply in England only, require workers deployed in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated unless they are exempt.
With the deadline for vaccinations looming quickly decisions will shortly need to be made in relation to any staff that are not vaccinated and will not be vaccinated by the 11th November.
Employees can only be fairly dismissed if the reason for dismissal is one permitted by law and the process followed is fair and reasonable.
Statutory Restriction is a potentially fair reason for dismissal and the Health and Social Care Amendments requiring vaccination will impose a legal requirement on Regulated managers. The dismissal of a care home worker who is not fully vaccinated (and is not exempt from the requirement to be fully vaccinated under the Health and Social Care Amendment Regulations) may be fair on the basis that the employee cannot continue to work in the position they hold without either the employer or the employee contravening “a duty or restriction imposed by or under an enactment.”
Prior to any decision to dismiss being made an employer must follow a fair procedure and ensure they:
- Consult with the employee.
- Warn them of the risk of dismissal if they do not provide evidence of vaccination or exemption within specified timescales.
- Give the employee opportunity to explain their circumstances and any reasons they should not be dismissed. This should be at a meeting. If a meeting is not possible then it can be held virtually or by telephone.
- Allow the employee to be accompanied.
- Take and share notes of any formal meetings.
- Explore alternatives to dismissal, such as redeployment or homeworking.
- Decide the outcome and communicate this to the employee.
- Provide a right of appeal.
Any decision to dismiss must be reasonable in the circumstances and any employee that is dismissed will be entitled to notice of termination.
It will be important to consider what approach should be taken in circumstances where any employee obtains the first dose of the vaccination prior to 11th November but is not fully vaccinated by the deadline, decides to get vaccinated following termination but before any appeal takes place or is delayed in obtaining a medical exemption. There will be a requirement to consider whether to put the employee on unpaid leave, redeploy them or provide offsite work or training until such time as they do evidence full vaccination or certification of exemption.
Employers should bear in mind that once notice has been given it cannot be retracted without the agreement of both parties.
If you do have employees that are required to be vaccinated and are not, we are able to provide advice and guidance regarding your options, just call one of the team on 01274 864999.
Author: Sarah Edwards, Senior Employment Law Solicitor
