- Written by
- Elliott Flockhart, Trainee Solicitor
The government has confirmed all care workers must receive their first Covid-19 vaccine by 16 September 2021, and must be double-jabbed by 11 November 2021, in order to keep their jobs. UNISON, the public service union, has urged the government to scrap the controversial ‘no jab, no job’ vaccination rule, amid fears of a ‘severe staffing crisis’, as thousands of care workers are being pushed towards quitting their job. The union has expressed their fears that many care homes are in danger of closing, as it is estimated that up to 70,000 care home workers in England may not be fully vaccinated by the deadline. This will undoubtedly exacerbate the staff shortage issue within the sector, which already has over 110,000 vacancies.
Christina McAnea, UNISON general secretary, announced, “Vaccination remains the way out of the pandemic. But coercing and bullying people can never be the right approach. Ministers have been told repeatedly that using force instead of persuasion will fail. But they’ve not listened and now their ill-considered policy is backfiring. The government is sleepwalking into this disaster by not acting.”
The introduction of the compulsory ‘no jab, no job’ measures has again raised new ethical and legal implications under human rights law or equalities legislation. Notably, it has been challenged that the new regulations requiring care home staff to be vaccinated breach section 45E of the Public Health (Control of Disease Act) 1984, which states that regulations cannot include provisions to require an individual to undergo medical treatment.
There are further employment legal risks of imposing compulsory vaccination. Without an express agreement, forcing employees to receive a Covid-19 vaccine could amount to a repudiatory breach of contract, resulting in potential constructive dismissal claims. Furthermore, compulsory vaccinations could amount to direct discrimination against employees with a protected characteristic, or even indirect discrimination as it amounts to a provision, criterion or practice. Lastly, there may be data protection issues surrounding mandatory vaccination as employees will be required to disclose their vaccination status, which will amount to special category personal data, which requires stricter regulations.
If you need assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.
Advice | 9 December 2021
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