Mandatory Vaccination Regulations in the health and care sector – impact on EPL claims

Published 26 January 2022

Employment Practices Liability (“EPL”) insurers, brokers and insureds will no doubt be aware of the introduction of COVID-19 vaccination as a condition of deployment in the health and care sector. 

In this bulletin we explain the new rules for each sector and what this may mean for EPL claims for those insureds in the Care and Healthcare sector.

Please note that these Regulations only apply to England. 

Mandatory vaccinations in the Care sector

On 11 November 2021, new Regulations came into force (the “Care Home Regulations”) making COVID-19 vaccination mandatory for care workers. This means that anyone who works inside a in a CQC-registered care home in England for residents requiring nursing or personal care must have 2 doses of a COVID-19 vaccine unless they are exempt.  The requirement applies to all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home.

The following workers are exempt:

• anyone with a medical exemption (see below for further details);
• workers who do not enter the care home at all, 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.

Medical exemptions are limited. Examples of conditions that might qualify for a medical exemption are:

• people receiving end of life care where vaccination is not in the person’s best interests;
• people with learning disabilities, autism or a combination of impairments which mean that vaccination and testing result in distress and who cannot be vaccinated through reasonable adjustments such as an accessible environment;
• a person with severe allergies to all currently available vaccines;
• those who have had an adverse reaction to the first dose (for example, myocarditis).

Temporary exemptions are also available for short-term medical conditions and pregnant women.  Pregnant women are being encouraged to get the vaccine, however, a temporary exemption is available for pregnant women who choose not to be vaccinated.  The short term exemption expires 16 weeks after birth.

There was some opposition to the introduction of the Care Home Regulations (as there currently is to the extension of the requirement to the healthcare sector). Those opposed to the Regulations launched a judicial review in Autumn 2021, however this failed.  While care homes saw a significant drop in the number of unvaccinated staff as the deadline of 11 November approached, a sizeable minority had still not been vaccinated.  Care homes were obliged to follow a fair procedure including considering whether any of these staff could redeployed, however, inevitably a number of staff were dismissed.

Extension to the healthcare sector

In June 2021, when Matt Hancock confirmed that COVID-19 vaccinations were to become compulsory for staff in care homes in England, he also stated that consultations would also begin on introducing a similar rule for other health and care staff.  The widely trailed regulations (“the Healthcare Regulations”) came into force on 7 January 2022.  These Regulations apply to all providers of “regulated activities” so any provider of health or social care services whether in the NHS or in the independent sector.

The Healthcare Regulations require that all those who will have direct face-to-face patient contact with service users as part of CQC regulated activity are vaccinated against COVID-19 by 1 April 2022, unless exempt.

The 12 week grace period (between 7 January and enforcement of the requirement on 1 April)  is intended to allow staff who have not yet been fully vaccinated to complete the course. Practically, this means that staff must have had their first dose of the vaccine by 3 February 2022, to ensure they can receive a complete course by 31 March 2022.

Who will be covered by this new requirement?

• The Healthcare Regulations will cover workers who have direct, face to face contact with service users, subject to limited exceptions. This will include front-line workers as well as non-clinical workers not directly involved in patient care but who nevertheless may have direct, face to-face contact with patients, such as receptionists, ward clerks, porters and cleaners.
• It will cover workers in health and social care settings, including hospitals, GP practices, and where care is delivered in a person’s home.
• They will also apply where a regulated activity is delivered through agency workers, volunteers or trainees, or contracted to another provider.

Exemptions:

As with the Care Home Regulations, there will be exemptions.  The following individuals will be exempt:

• under 18s;
• those who are clinically exempt from COVID-19 vaccination (for example workers who have a pre-existing diagnosis of anaphylaxis to the vaccination or its components);
• those who have taken part or are currently taking part in a clinical trial for a COVID-19 vaccine;
• those who do not have direct, face to face contact with a service user, for example, those providing care remotely, such as through triage or telephone consultations or managerial staff working in sites apart from patient areas;
• those providing care as part of a Shared Lives agreement as these arrangements involve the care recipient living in the home of the carer. The Government has said this will be treated differently as in many cases care recipients have lived in their homes for decades with people they view as their extended families.

A similar temporary exemption to that which exists with the Care Home Regulations will be available for pregnant women who choose not to be vaccinated.

Impact

As we saw with the Care Home regulations, whilst the coming into force of the Healthcare Regulations may persuade some currently unvaccinated staff to get vaccinated, they are unlikely to persuade everyone and their impact – on operations and staffing - is potentially significant.  Many employees who refuse to be vaccinated will face dismissal.  Current estimates suggest 6% of NHS staff have not yet had two vaccine doses. With 1.1 million employees in NHS hospital staff, a small proportion affected could still translate into a large number of dismissals in absolute terms.

What does this mean for EPL insurers?

We are anticipating that the number of staff dismissed for failure to comply with the vaccination requirement will translate to an increase in claims to the Employment Tribunal. There have already been some reported Employment Tribunals in relation to this issue.

Dismissed staff have 3 months to notify ACAS they will be bringing a claim in the Employment Tribunal with service of proceedings usually following shortly afterwards. This cut-off date will translate to 11 February 2022 for care home staff and 1 July 2022 for the wider healthcare sector.

Insurers who cover EPL or employment related risks in the Care and Healthcare sector are therefore likely to see a rise in claims in the next 6-8 months.  It is likely that these claims will be for unfair dismissal and discrimination (on the grounds of protected belief/philosophy, race or disability). The ability to fully defend such claims  will depend on  the extent to which employers have undertaken a fair process before dismissal and whether they have taken proper account of the reasons behind any refusal to be vaccinated in each individual case, where they are based on protected characteristics under the Equality Act.  

Our expertise

DAC Beachcroft has one of the largest Employment Law practices in the UK and is ranked as a National Leader in Chambers & Partners.   We are best placed to deal with claims relating to COVID-19 vaccinations due to our unique combination as the leading advisers in the healthcare and insurance sectors.

Solicitors in our employment team who specialise in health and social care have been regularly advising on this area since the initial care home regulations were announced last year.   In addition, we have been advising on and handling EPL claims for insurers for many years, and have a dedicated EPL team. EPL claims account for a significant proportion of the employment tribunal claims handled at DACB. For more information contact Louise Bloomfield, Partner, or Anjali Sharma, Legal Director.