Equality and Human Rights Commission gives green light to mandatory vaccines in care homes

10 Jun, 2021

From one of SCA's suppliers, Royds Withy King.

 

The Equality and Human Rights Commission (EHRC) has published its response to the Government consultation on making vaccines mandatory in care homes.

 

The EHRC emphatically supports mandatory vaccines in residential care homes, stating ‘in our view it is therefore reasonable to require care home staff to be vaccinated in order to work directly with older and disabled people’.

 

Matthew Hendra, a Senior Associate, and James Sage, a Partner and Head of Social Care at Royds Withy King comments:

 

One of the key areas of challenge for any requirement for mandatory vaccination would be that it breaches a worker’s right to respect for private life under Article 8 of the European Convention on Human Rights. This is a qualified right and may be infringed where doing so is a proportionate means of achieving a legitimate aim (such as protecting health). The endorsement from the EHRC for mandatory vaccination 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.

 

The EHRC response

The EHRC fully support the national vaccination programme, saying it ‘is 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’.

 

They concluded that the Government’s actions in ‘protecting the right to life has rightly been prioritised’ and ’in legislating for mandatory vaccination the Government is right to prioritise protection of the right to life for residents and staff’.

 

As justification for its position it also noted the effectiveness of vaccines, finding that they provided good protection against serious illness and death as well as some protection against transmission.

 

Importantly, the EHRC said there must be safeguards to ensure proportionality, as well as minimising the risk of discrimination and breach of workers’ human rights, including:

 

  • 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

  • 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.

 

Wider implications

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.

 

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% 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 and there are over 100,000 vacancies already existing in the sector.

 

To find out what happens next, if employers should introduce mandatory vaccinations now, and to read this article online please click here.

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