Judicial Review lodged over vaccination requirements for care home workers
On 22 July 2021, the UK Government implemented the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the "Regulations"). From 11 November 2021, the Regulations require registered persons of all Care Quality Commission ("CQC") registered care homes (which provide accommodation together with nursing or personal care), including the registered manager, to ensure that a person does not enter the indoor premises of a care home unless they have been fully vaccinated.
Who will be required to have the vaccine and by when?
Whilst certain exemptions do apply, essentially, the Regulations require any employees, agency workers or other contractors, who may be engaged to enter a relevant care home, to be fully vaccinated by 11 November 2021. To comply, this means that affected individuals will need to have had their first vaccination on or before 16 September 2021.
Are there exemptions from having the vaccine?
From 11 November 2021, CQC registered persons are under an obligation to secure that no unvaccinated person enters the care home unless:
- they are a resident of the care home;
- they are able to provide evidence that they should not be vaccinated due to a clinical reason;
- it is reasonably necessary for them to provide emergency assistance in the premises;
- it is reasonably necessary for them to provide urgent maintenance assistance with respect to the premises;
- the individual is attending the premises in the execution of their duties as a member of the emergency services;
- the individual is a friend or relative of a resident;
- the individual is visiting a resident who is dying;
- it is reasonably necessary for the individual to provide comfort or support to a resident in relation to their bereavement following the death of a friend or relative; or
- the individual is under the age of 18.
Visitors can demonstrate their vaccination records using the NHS COVID Pass service either via the NHS App, the NHS website or the NHS COVID Pass letter.
It is important to note that those who are medically exempt will not have to be vaccinated and, similarly, any visitors of care home residents will also be excluded from the new requirements.
What happens if employees do not have the vaccine by the deadline?
As it will not be legal for employees or workers to continue their normal duties on the care home premises until both vaccinations have been received, employers should start to consider and implement procedures to manage staff who do not have both vaccines by the implementation date. It is best practice to involve staff in this preparation.
The relevant Government guidance (here) ("Guidance") emphasises that employers should explore all options available to staff who do not have proof of the vaccine and do not fall within an exemption. This may involve redeployment to alternative roles, such as those without direct contact with residents, or a temporary cessation of duties. Whilst paid or unpaid leave cannot be a long-term solution, as the Regulations do not have a time limit, this may be considered appropriate where a worker has simply not yet completed the full vaccination course by 11 November 2021 (but intends to do so) or where there are delays in obtaining evidence of medical exemption.
Alternatively, the Guidance also makes it clear that, as long as the employer follows a fair process, the Regulations may provide a fair reason for dismissal. Steps to consider before taking a decision to dismiss are helpfully outlined in the Guidance. It is unlikely that the dismissal will be considered fair in circumstances where the employee or worker is waiting to get their vaccine. However, it may be appropriate where an individual outright refuses to get the vaccine and alternatives to dismissal have been properly explored with them in advance.
Importantly, the Guidance also clarifies that employers will be protected from discrimination claims on the grounds of age, disability, religion or belief and will not breach the Equality Act 2010 on these grounds if they are following the Regulations. However, it will still be crucial that employers follow a fair procedure to ensure that the dismissal is carried out in a fair and non-discriminatory way (even where an employee does not have two years' service). This protection does not extend to allegations of discrimination on the grounds of race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage or civil partnership.
The Regulations clearly place significant requirements on care workers. As a result, it is perhaps unsurprising that, on 9 September 2021, two care workers issued judicial review proceedings. Judicial review can be sought to challenge the lawfulness of a decision made by a public body. In this case, the proceedings challenge the mandatory vaccination requirement implemented by the Regulations.
The claim is reported to have been brought on five grounds, including that the Regulations are disproportionate, incompatible with laws prohibiting the enforcement of mandatory vaccines and the European Convention on Human Rights, and that they interfere with the public's right to "bodily integrity". There are also concerns that they will lead to shortages in care workers.
Whilst it is unlikely that any decision will be given before 11 November 2021, if the proceedings are successful, the Regulations may be deemed unlawful and amended insofar as is necessary.
What should CQC regulated employers be doing?
At this point in time, the Regulations remain in force and employers should proceed on the basis that they will remain in force on 11 November 2021. As such, employers should ensure that they:
- Consider adopting a written vaccination policy, including timescales in which employees may be redeployed after 11 November 2021 in order obtain the vaccine if they haven't already done so.
- Review their privacy notices and data protection policies to ensure that they are transparent as to any personal data that will be processed to comply with the Regulations.
- Liaise with their workforce between the publication of the Guidance, and the implementation of the vaccination requirement on 11 November 2021.
- From 11 November 2021:
- keep up-to-date records of staff vaccination or exemption statuses of staff members and visitors; and
- complete a risk assessment for those who are exempt from vaccination to evaluate the potential risk to the spread of COVID-19 caused by unvaccinated but exempt members of staff entering the care home.
We will monitor the judicial review proceedings and circulate an update should the position for care homes change. In the meantime, employers are strongly advised to familiarise themselves with the Guidance.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.