On 31 January 2022, the UK government made an announcement that it intends to consult on revoking the previous statutory requirement for workers to be vaccinated in care homes and the health and social care sector.
Current rules for the health and social care sector and care homes
Prior to this big announcement, the government had legislated for the COVID-19 vaccine to be mandatory for all non-exempt care workers in Care Quality Commission registered care homes in England. The deadline for such workers was Thursday 11 November 2021.
The mandate for compulsory vaccination for frontline health and social care workers in England was not due until 1 April 2022. In order to have met this deadline, healthcare workers would need to have received the first dose of a COVID-19 vaccine by 3 February 2022. This would have meant that those who didn’t meet the deadline would have been at risk of dismissal.
Legal considerations
The UK government does not currently have the legislative power to mandate a blanket COVID-19 vaccination requirement – to do so it will need further primary legislation. However, as demonstrated by the mandatory COVID-19 vaccination requirement in the care sector, there are some sectors where existing primary legislation allows the government to bring in regulations on mandatory vaccination.
In April 2021, the Equality and Human Rights Commission (EHRC) warned that a blanket mandatory vaccination policy applied inflexibly will be “likely to be unlawful”, as a result of vaccination not being suitable for all and potentially risking discrimination.
Therefore, the idea of a ‘no jab, no job’ mandate was flawed. A compulsory vaccination requirement for workers, employees or job applicants could amount to a provision criterion or practice (PCP) which puts certain individuals with a protected characteristic, such as a disability, at a distinct disadvantage compared with others who do not share that protected characteristic, which is contrary to equality legislation.
Furthermore, where an employer makes a request that certain employees be vaccinated, or indeed where such employees are treated more harshly as a result of them not being vaccinated, this could result in direct discrimination.
Moreover, the ‘no jab, no job’ policy could be seen as an invasion of an individual’s Article 8 (Human Rights Act 1998) right to privacy, since there are other ways to reduce the risk of transmitting COVID-19 in the workplace. It is also important to note that employees and workers who refuse the COVID-19 vaccine on the ground of religion or belief may also be able to rely on Article 9 of the Human Rights Act 1998.
What the consultation could mean for the health and social care sector and care homes
The UK government’s consultation period for revoking the statutory requirement for mandatory vaccination in the health and social care sector and care homes is expected to be open for two weeks. Amending regulations can then be put before Parliament with the aim of revoking the changes that have been made to the various legislation around health and social care which implemented the vaccination requirement.
In the event the above changes do not take place, the implication for new workers in the health and social care sector is that they will all need to be vaccinated in order to be deployed by a Care Quality Commission registered person. Each new worker will need to provide evidence that they have been vaccinated against COVID-19 by providing the NHS COVID pass, an EU digital COVID certificate or a Centres for Disease Control and Prevention vaccination card.
As for existing staff, the NHS England guidance advises employers to “consider an individual’s reasons for declining to be vaccinated and examine options short of dismissal, where appropriate” but adds “If it’s not feasible to implement alternative solutions, staff will be taken through a formal process to dismissal.”
The health and social care sector and care homes, and indeed the rest of the UK, will wait with great anticipation for the outcome of the upcoming consultation. In the meantime, the effect of the current polices will continue to loom over the sector.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.
