The Equality and Human Rights Commission (EHRC) has come out in support of mandatory vaccination in residential care homes. In its consultation response, it states: “It is reasonable to require care home staff to be vaccinated in order to work directly with older and disabled people.”
According to law firm Royds Withy King, the endorsement from the EHRC will give the Government confidence over the legal arguments and likely paves the way for the Government to proceed with its proposals.
It also serves as useful guidance for care providers considering making vaccination a condition of employment, says RWK Senior Associate Matthew Hendra and James Sage, partner and head of social care.
The lawyers explain that the key challenge to mandatory vaccination is that it breaches a worker’s right to respect for private life under Article 8 of the European Convention on Human Rights.
However, they note that this is a qualified right, which may be infringed where doing so is a proportionate means of achieving a legitimate aim (such as protecting health).
The EHRC describes the national vaccination programme as an essential step in “protecting public health and the right to life and removing significant restrictions to our freedoms, participation in the community, and family lives”.
It describes the Government, in legislating for mandatory vaccination, as right to prioritise protection of the right to life for residents and staff.
Importantly, the EHRC calls for safeguards to ensure proportionality, as well as minimising the risk of discrimination and breach of workers’ human rights. These include:
- Legal exemptions – there should be exemptions for the ‘small number of people who cannot medically take the vaccine’
- For those unable to be vaccinated, alternatives should be considered, including PPE, rapid testing and redeployment at an equivalent grade and rate of pay
- No worker should suffer financial detriment as a result of taking the vaccination (travel, loss of pay etc)
- Reasonable adjustments must be made for disabled people who are unable to be vaccinated so that they are not disadvantaged, for example by agreeing redeployment away from front-line roles, at an equivalent grade and rate of pay
- Recruitment questions about health (including vaccination status) should be compatible with section 60 of the Equality Act 2010
- Adverts should clearly state that medically exempt people can apply.
According to RWK legal team, the EHRC response acknowledges the significant impact that making the vaccine mandatory could have on staff retention in the sector. Vaccine hesitancy is greatest amongst ethnic minority groups and women, who make up a high proportion of the care workforce. The EHRC recommends that these issues are properly debated in parliament before the Government proceeds with its proposals.
RWK says: “We agree that this is a fundamental issue. The consultation suggests that staff can be redeployed if they refuse the vaccine but the reality is that this is not possible in the social care sector, in the way that it is in the NHS, and there is the potential for high numbers of care staff to lose their jobs.
Approximately 20 per cent of the workforce is unvaccinated and the prospect of care providers being forced to dismiss them is a serious concern. Recruitment is already a significant challenge.
Vaccination checks will create a significant additional administrative burden on managers and it is imperative that an effective system is put in place to make it workable in practice. It is possible that vaccination rates will be used by CQC to determine which homes to inspect.
RWK says that homes should take legal advice over how to minimise the risk of claims, including:
- Unfair dismissal (where employees resign or are dismissed for not vaccinating); and
- Discrimination (particularly where employees are unable to be vaccinated for medical reasons).
CHM has also published a podcast on mandatory vaccination in care homes.