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Compulsory Care Home Vaccinations: COVID-19 and Discrimination

9 November 2021

The extent to which care homes have been hit by COVID-19 over the course of the pandemic has been widely reported in the media and has led to additional criticism of the government for failing to stem the outbreak in this sector.

What do the Amended Regulations say?

Following a government consultation, however, in July 2021 regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 was amended by inserting a new provision requiring all workers deployed in Care Quality Commission (“CQC”) regulated care homes in England to be fully vaccinated by 11 November 2021 (unless they are exempt). The rationale behind this policy is to protect the vulnerable who are most at risk of serious illness from COVID-19.

In order to meet this deadline, all care home workers should have had their first covid vaccination by midnight on 16 September 2021. From 11 November 2021, only people who can provide evidence that they have been fully vaccinated or are exempt will be allowed to enter regulated care homes in England. This includes all staff (whether part-time or full-time), contractors, people who are not employed but need to enter for work (e.g. doctors and nurses) and volunteers. It does not extend to current care home residents, visitors, those with a medical exemption, the emergency services or those providing emergency assistance or urgent maintenance, those under 18 or those providing bereavement support.

Booster doses of the vaccination are not currently included in the regulations, however, government guidance is that managers should encourage workers to take booster doses when eligible.

These regulations will be reviewed in November 2022, a year after they come into force.

What should you tell staff?

Staff should be informed and consulted about the new law (as should any recognised trade union representatives) so that it is clear when it comes into force, how to check whether someone is vaccinated (the evidence required), who is exempt and how to store this information (so that it is GDPR compliant).

Operational guidance has been published to help support the implementation of these regulations in care homes.

Could Discrimination and Human Rights issues arise?

This new law should reduce the risk of unfair dismissal and/or unlawful discrimination claims (under the Equality Act 2010) being bought against care home providers who required workers to be vaccinated, as providers will soon be complying with legal requirements. That being said, the government has predicted that 7% of care home workers in England (which equates to around 40,000 people) will refuse to have the vaccine. The reasons for doing so will be varied, but this will no doubt still give rise to some discrimination and human rights issues.

Indirect discrimination as set out in the Equality Act 2010 protects individuals with a “protected characteristic” from being put at a disadvantage by a provision, criterion or practice. Religious or philosophical belief (for example) is a protected characteristic, therefore, workers who refuse the vaccine based on their religious or philosophical belief may have scope to make a discrimination claim. It is likely, for example, that Anti-vaxxers, who believe that the vaccine is harmful to the public will probably be protected, as their view will amount to a protected belief, although that is not to say that their belief being a protected characteristic would necessarily mean a claim would be successful.

Whilst the scope for employers claiming indirect discrimination will be somewhat limited, due to the implementation of the new law, employers must ensure that any process they follow is non-discriminatory. For example, when considering potential reasonable adjustments for disabled workers who have not yet got the vaccine or when considering redeployment of those who have not been vaccinated.

There is also scope to argue that having a mandatory vaccination requirement is an invasion of one’s human rights. The main human rights that are likely to be affected are: Article 8, right to privacy; Article 9, freedom of thought, conscience and religion; and Article 14, protection from discrimination in relation to these rights are freedoms. In September 2021, two care home workers applied for judicial review of the new regulations arguing, amongst other things, that this mandatory vaccine requirement is disproportionate and violates Articles 8 and 14.

Conclusion

Care homes affected by the new regulations should have already started to discuss the implications with their staff and should be supporting them to get vaccinated. These care homes should be following the government’s operational guidance and/or seek legal assistance to ensure compliance with the regulations in order to avoid potential unfair dismissal and/or unlawful discrimination claims. Businesses outside of this sector who are considering implementing a compulsory vaccine requirement on their staff, have multiple things to consider, not least, whether such a requirement will be discriminatory.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Richard Berry or write to us using the contact form below.

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