Despite the leaking of documents to suggest that the evidence base for mandatory vaccinations does not stack up (see here), the train still trundles on with the fear of further significant staffing shortages not yet leading the Government to pull the emergency brake. 

Late last week, the guidance on the application of the regulations in wider adult social care settings was published. The guidance is detailed and is something that providers will find very useful in interpreting the regulations. Given the hasty drafting of the regulations, there were many gaps providers are looking to the Guidance to fill. The scope of the regulations was the key one:

  • Employed or engaged for 'purpose of' or 'to provide'

The regulations state that they apply to people employed or otherwise engaged by the CQC registered provider 'for the purposes of the provision of the regulated activity'. However, the guidance refers to individuals employed or engaged to 'provide the regulated activity'.

The difference in wording, whilst seemingly innocuous is crucial; being employed for the purpose of something is much wider than providing that something. The guidance appears to narrow the scope of the regulations.

For example, a quality checker within an organisation is working for the purposes of the regulated activity but is not providing that regulated activity. According to the guidance, as they are not providing the regulated activity, it is not relevant whether within their role they have direct face to face contact with the people being supported. 

Consider how you have decided who is in scope. Have you included too wide a group of people? Dismissing a member of staff for failing to be vaccinated when they do not actually provide a regulated activity could render the dismissal more likely to be unfair given the narrower test set out in the guidance. 

The guidance includes a flowchart that suggests the following are not within the scope of the regulations:

  • Head office staff
  • Administrative staff
  • Cleaners (for example within an extra care setting)
  • Day Centre staff

Some employers may still prefer to take a consistent position across their workforce for anyone who has direct face to face contact with the people they support. For example, providers with employees proving personal care in day care settings (who are not technically within the regulations) may still want to require vaccination of those staff and may be contemplating dismissal if they will not be vaccinated.

Providers who are in this position and wrestling with whether particular staff fall clearly within the regulations may take some comfort from an Employment Tribunal decision published last week.   

In the case of Allette v Scarsdale Grange Nursing Home (SGNH), an employment tribunal has found that the dismissal of a care home employee for refusing to be vaccinated against Covid-19 in January 2021 was not unfair. Although the tribunal accepted that the employee’s fear of and scepticism about the vaccine was genuine, the requirement to be vaccinated was a reasonable management instruction and she had no medical authority or clinical basis for refusing. 

This case predates the Government mandating vaccines in care homes. Its implementation was to protect the health of residents, staff and visitors. On the facts in play at the time the decision to require vaccination, and therefore interfere with the claimant’s private life, was considered to be proportionate. 

SGNH Ltd was a small employer with a legal and moral obligation to protect its vulnerable residents. The tribunal accepted its submission that its decision to impose vaccination in January 2021 had to be seen in the light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time.

We would expect this decision to be challenged on appeal. With evidence suggesting vaccines do not prevent the spread of Omicron, we consider a challenge to a decision to dismiss an employee now where there is no legal requirement for vaccination in the particular role would be more likely than not to succeed.