By Alan Price, CEO of BrightHR, international HR software firm and employment law advice service (www.brighthr.com)
Following reports last week of a number of care homes in England facing resistance over their efforts to prepare for compliance with the law on mandatory Covid vaccines, an official legal challenge against the Government is now expected. This will not be welcome news to employers who are already putting time into the process to prepare for their compliance with the new rules who are now faced with a new cause for uncertainty about staffing in their care home.
An open letter has been drafted by the Legal Advice Network addressed to various people including the Secretary of State for Health and Social Care, Sajid Javid, and copied to the Care Quality Commission (CQC). It raises points about the legality of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, the vehicle used to impose the requirement for registered persons to refuse entry into a care home in England unless certain exemptions are met. One such exemption is the production of evidence to demonstrate that the person is fully vaccinated against Covid-19; this is the exemption that will apply to the care home’s workers. Without that evidence, or evidence of medical exemption from the vaccine, workers are unable to continue working inside the care home and must be rede- ployed or lose their job.
In the letter, Mr Javid is asked to explain the legal standing of the new regulations in the context of an existing law, namely the Public Health (Control of Disease) Act 1984 which, the letter says, prohibit a requirement for people to undergo medical treatment, including vaccinations.
It now appears that this challenge will progress to formal judicial review proceedings. Although the judicial review proceedings would be against the Government, not employers, any official legal challenge to the new regulations will cause more uncertainty for employers.
As part of these proceedings, the Government would be asked to demonstrate that its new law is itself lawful.
If a full legal challenge is launched, it puts care home owners into a very tricky position. Many have already put in place initial steps to ensure that they are complying with the new law including informing their employees of the need to provide the required evidence and the consequences of not doing so.
Now they are faced with the potential outcome that the law will be removed. Reversing the effect of the regulations would appear to solve a significant staffing headache for care home owners who may other- wise lose valued members of the workforce who are not fully vaccinated and not medically exempt.
However, judicial review proceedings would take time, with no guarantee of the final outcome. Employers who put their processes on hold while waiting to see if the regulations will in fact stay in place may leave themselves will little time to manoeuvre before 11 November 2021, the date that the requirement is intended to take effect, should it remain in place. Whilst this may not affect their compliance with the requirement of ensuring that no non-exempt person enters the care home, a delay is likely to affect the completion of November rotas due to uncertainty of who will or will not be able to work, and leave employers with hefty notice payments to employees who are dismissed and cannot work after 11 November 2021.
Some employers may decide that the best option, despite current uncertainty, is to continue to prepare for the 11 November 2021 deadline, whilst being sympathetic to employees’ circumstances. This would appear to put them in the best position for dealing with the outcome of any judicial review.