EMPLOYERS are being warned to be aware of the potential risks of discrimination following the deadline for care home staff to be fully jabbed against Covid-19 or face losing their jobs.

Marie Horner, a partner in employment law at York-based Langleys Solicitors, has highlighted the legal implications surrounding the 'no jab no job' question.

Her advice to York bosses follows the Government guidance which states that from November 11, 2021, anyone working or volunteering in a care home must be fully vaccinated against coronavirus, unless exempt.

Under the regulations, service providers at all care homes registered by the Care Quality Commission, which provide accommodation together with nursing or personal care, must ensure that any staff or volunteers in the home's indoor premises must show they have been vaccinated or have an exemption.

Marie said in February, her colleague Kate Hindmarch had warned that employers were likely to face risks if they adopted a 'no jab no job' approach in the workplace.

"At that time, there was no specific legal right for employers to insist that staff be vaccinated and the law was conflicted; the human rights of the individual versus the employer’s obligation to protect the health and safety of its staff and, in the care sector, of those in its care," she said.

“In July, the government introduced amendments to the law to require staff employed in registered care homes to be fully vaccinated, unless they were exempt.

"Those amending provisions came into force on November 11, 2021, following a 16-week grace period to enable affected workers to receive both doses of the vaccination.

"This was despite the National Care Association calling for a last minute extension to the deadline (to align with the April 2022 deadline for NHS staff), in the face of the realisation that there would be a clear risk of staff shortages in care homes over the winter due to the numbers of staff that were not vaccinated and were potentially facing dismissal.

"In Lincolnshire for example, the county council have suggested that around six per cent of staff working in the care sector within the county (around 540 people) have not had their jabs."

She said there had been a lot of commentary published about the situation but cautioned that it was sometimes misleading.

"Employers might be forgiven for believing that they are entitled to simply dismiss those members of staff who are unvaccinated without further ado, or to place them on unpaid leave whilst a decision is taken. However, such approaches would almost certainly be misguided.

“Employers must take care to factor in the individual’s contractual terms, and to ensure that all alternative options to dismissal are exhausted.

"Contracts containing specific terms allowing an employee to be placed on unpaid leave pending a decision are also likely to be the exception to the norm.

"Care must be taken in relation to each individual employee’s reasons for not having the vaccination, with one eye on, for example, potential discrimination issues.

“Finally, if the decision is still to dismiss, having considered all factors, employers must ensure that any termination is effected in accordance with the provisions of the employment contract.”