PAGE 10 | THE CARER DIGITAL | ISSUE 74
Mandatory Vaccines: How Can the Care Sector Prepare Ahead of November 11th? Julian Cox, partner and head of the London employment practice at law firm BLM (www.blmlaw.com), discusses the legal risks that care home employers need to consider in the lead up to the government’s mandatory COVID-19 vaccination requirement for staff, which comes into effect on November 11th. The success of the vaccination programme in the UK caused intense debate over whether businesses should start requiring staff to be fully vaccinated in order to work. In May, Public Health England (PHE) released rigorous evidence to show that the effectiveness of vaccination substantially reduces transmission and decreases the number of people needing hospitalisation. The findings highlighted the efficacy of vaccines in reducing the risk of unknowingly passing on the virus to others. It was strong evidence that by getting vaccinated, staff would protect not only themselves, but their colleagues in the workplace. After a calamitous handling of care homes during the worst waves of the pandemic, which resulted in more than 40,000 deaths, it is no surprise then that the government will make it mandatory for people working in CQC-registered care homes to be fully vaccinated with both doses by November 11th, 2021, unless they have a medical exemption. Those in the sector are advised to familiarise themselves with the official Government operational guidance on this rule, available online here. This rule will apply to all directly employed full-time and part-time workers, as well as those employed by an agency and deployed by the care home, extending to deployed volunteers. This rule will also encompass others coming into care homes to work, such as healthcare workers, hairdressers and beauticians and CQC inspectors, unless they have a medical exemption. Regardless of whether such a requirement will make care homes safer for workers and patients as a result of the policy, employers will need to be extremely cautious as to how to introduce mandatory vaccinations in the run up to November 11th. Care homes will need to tread carefully when dealing with staff that are wary of, or refuse to get, the vaccine, as it could well risk breaching employee protections including the Employment Rights Act 1996 and the Equality Act 2010. Prior to the introduction of mandatory vaccination, employers should inform and consult staff about the requirement on a collective and individual basis. To best protect against a potential for exposure to discrimination and unfair dismissal claims, employers should consult and communicate effectively with staff and work together with them to find a suitable solution. One of the most important risks to look out for is the potential for any claims under the Equality Act 2010 in
respect of staff reluctant or refusing to take the vaccine relating to their treatment, including their dismissal. Currently, the government’s mandatory vaccine requirement makes an exception for people who can claim a genuine medical exemption due to an underlying health condition. Such an exception may well give them protection as disabled under the Equality Act 2010. Employers will also need to be specifically mindful of staff who fall into the following categories: • have objections on the grounds of religious or philosophical beliefs; • the vaccine is (or has only recently) unavailable to them due to their age; • women who are wary of the vaccine’s effect on maternity and pregnancy. These individuals may also be afforded protection under the Equality Act 2010. With this in mind, employers should not rush to dismiss someone who has not been fully vaccinated - it should be seen as an absolute last resort. Any concerns around the vaccine that are raised based on disability, pregnancy, maternity, or religious reasons, will certainly need to be looked at very carefully, given they may afford protection against discrimination under the Equality Act 2010. As a matter of best employment practice, it is preferable to sit down with employees and try to understand and allay any concerns regarding the vaccine and attempt to resolve them. It could drastically reduce potential future claims, and through empathetic and informative discussion, hesitant employees may even consider getting vaccinated. Consideration ought also to be given to redeployment as an alternative to dismissal. The potential for any unfair dismissal also represents a major risk for employers. If employees still refuse to be vaccinated without reasonable grounds, and redeployment is not an option, the employer may reasonably look to dismiss. Although it will be law for care home staff to be double jabbed, employers will still need to follow all the procedural steps as part of ensuring a fair dismissal process if it comes to that. Failure to follow fair procedures in dealing with employees reluctant to be vaccinated could amount to an unfair dismissal. Employees who feel pressured into having the vaccine may seek to resign and also claim constructive dismissal, on the grounds of a hostile work environment. What’s more, there is no length of service requirement for ex-employees to bring a claim for unfair dismissal given this is a health and safety related dismissal, so care homes should consider dismissal as the final option to prevent a risk of such claims. This should spur employers to update their contracts of employment and policies to reflect the vaccination requirement. Transparency and communication will be key for care homes in the lead up to November 11th. The requirement for care homes to have members of staff fully vaccinated will undoubtedly bring new challenges and risks for care, one of the most heavily impacted sectors throughout the pandemic. Going forward, clear communication and understanding will need to be at the heart of any interaction with anyone hesitant towards the vaccine, to ensure employees feel safe in the workplace and employers minimise the risk of legal action.
Increased Stability in Social Care Key to Mitigating Risk of “Tsunami of Unmet Need” The Care Quality Commission (CQC) has published its annual assessment of the state of health and social care in England. The CQC’s annual assessment of the state of health and social care in England examines the quality of care over the past year – the first of these reports to cover a full year of the pandemic. The report warns that, unless “increased stability” in social care and “real collaboration across health and social care” are achieved, there is a risk of a “tsunami of unmet need”. Other warnings from the statement include: •“As we approach winter, the workforce who face the challenges ahead are drained in terms of both resilience and capacity, which has the potential to impact on the quality of care they deliver.” •“Staffing pressures are being felt across all health and care settings. However, the impact is being seen most acutely in adult social care, where providers are competing for staff with the retail and hospitality industries.” •“Increased stability in social care is the key to unlocking not only improved access and quality of care for the people who use it, but to easing pressure on the NHS by reducing emergency attendances and enabling people to leave hospital in a timely way.” The report praises the success of the vaccination programme which it says has given hope that the virus can be contained, however, is the recognition that COVID-19 will continue to cast a long shadow over all aspects of life, especially the health and care system. The impact of staffing pressures is being seen most acutely in adult social care, where providers are competing for staff with the retail and hospitality industries. Data from information submitted to CQC by providers of residential care shows the vacancy rate rising month-onmonth from 6% in April to 10.2% in September. Some care homes whose attempts at recruitment have failed are now having to cancel their registration to provide nursing care, leaving residents looking for new homes in local areas that are already at, or close to, capacity. The government has made a welcome £5.4 billion investment to help address the challenges faced by social care. If this money is to make a difference, it must be used to enable new ways of working that recognise the interdependency of all health and care settings, not just to prop up existing approaches and to plug demand in acute care. Five hundred million pounds has been committed to support the adult social care workforce, which is urgently needed for improvements on training, career development and terms and conditions in order to
attract and retain staff. Work needs to begin now in order to address the immediate problem of rising vacancy rates as well as planning for the future. Increased stability in social care is the key to unlocking not only improved access and quality of care for the people who use it, but to easing pressure on the NHS by reducing emergency attendances and enabling people to leave hospital in a timely way. There is short-term funding currently in place to help discharge patients who are no longer in need of hospital care but who may still require care services – this has allowed the NHS to treat more patients and has made a crucial difference to the viability of some social care providers. If this funding were to be committed to for a longer period, care providers could begin to make longer term investments in staffing to provide much-needed step-down care. They could also build more meaningful relationships with primary, secondary and community care services – as well with third sector organisations and with carers, who have too often been the missing piece of the jigsaw. There is also a need for additional funding to be made available now, rather than next year, to areas that will otherwise struggle to meet people’s needs over the coming winter. As highlighted in last year’s State of Care, COVID-19 has exacerbated inequalities and continues to do so, meaning that people who were less likely to receive good care before and during the pandemic are in many cases the same groups disproportionally impacted by the virus. People with a learning disability, for example, are significantly more at risk from COVID-19 – but our review of community care for people with a learning disability found that their physical health, including how COVID-19 may present, was not always considered. Inspections of services for people with a learning disability or autistic people continue to find examples of care so poor that action is needed to keep people safe. Ian Trenholm, Chief Executive of CQC, said:“This year, more people than ever have contacted us with feedback and concerns about care. And as we go into winter, the health and care workforce are exhausted and depleted – which has clear implications for the vital care they deliver. “While staffing is an issue for all sectors, we’re particularly concerned about adult social care. We’re seeing rising vacancy rates, some providers having to hand back their registrations as they don’t have enough staff to deliver care, and examples of quality suffering
due to lack of staff. “If the new Government funding is to have an impact, it needs to be used to do things differently and to develop genuinely collaborative ways of working across all care settings. And staff need to be supported and rewarded. In order to attract and retain the right people to work in adult social care, there must be a sharp focus on developing a clearly defined career pathway – linked to training, supported by consistent investment, and better terms and conditions and pay. “We’re also highlighting the need for an extension to the Discharge to Assess funding in order to capitalise on the benefits it has delivered so far – as well as the need for additional targeted funding immediately to help areas that are struggling get through winter. “Increased stability on funding and a clear workforce plan for social care benefits everyone – but further instability could result in a ripple effect across the wider health and care system which risks becoming a tsunami of unmet need across all sectors, with increasing numbers of people unable to access care.” Peter Wyman, Chair of CQC, said: “We know that better, more coordinated care for people happens when local services work well as a system designed around local need. There is no silver bullet to the problems health and social care are facing – so it is more important than ever that we make best use of the resources available by local systems working together to make sure people are being cared for in the most appropriate place, reallocating resources as necessary to achieve this. “When we conducted a series of provider collaboration reviews across England to look at how systems worked to understand their local populations, we saw how good collaboration made a difference in helping people access care, even during the pandemic. “The challenge now is for every system to learn from these examples of innovation to ensure that their local population receives the care it needs, with leaders focused on delivering a transformation in the way that people access and experience care. “The future must be focused on outcomes for people – all people – who need care, supported by transformational changes to workforce, funding, commissioning and oversight. Rather than attempting a return to business as usual, we must grasp this opportunity to build something better – a health and care system that works for everyone.”