Revoked vaccination legislation for anyone working in care homes in England

At the time, Sajid Javid said that a two-week consultation would be launched due to “dramatic changes” in the virus since the policy for the wider health and social care sector was devised last year. In fact, the Consultation ran for only one week from 9-16 February 2022. The Consultation Response was published on 1 March 2022.

Whilst the majority of those responding were members of the public (56%), 90% answered that they felt the requirement for vaccination as a condition of deployment should be revoked. Only 9% expressed opposition to revoking the requirement. However, these were far more likely to be those who provided health and social care services or representative bodies.

For CQC-registered care homes in England the original impact assessment estimated that around 37,000 additional staff might leave as a result of the legislation, which came into force on 11 November 2021. The actual net loss between 20 July and 29 December 2021 was a fall in staff levels of 19,000, although this includes new staff joining and others leaving for different reasons in the same period.

Along with the release of the Consultation Response, the Health and Social Care Secretary confirmed on 1 March that the legislation requiring evidence of vaccination as a condition of deployment in CQC-regulated care homes in England would be revoked on 15 March 2022. On 31 January, the Health Secretary had already confirmed that the Department for Health and Social Care would contact care home providers immediately, to make it clear that the forthcoming changes are no longer applicable and there would be no further enforcement of the legislation. However, he confirmed he would nevertheless be taking further non-statutory measures including:

• to ask regulatory bodies to emphasise and encourage a professional duty for such staff to receive COVID-19 vaccinations,
• to update and strengthen the code of practice that applies to all CQC-regulated providers of healthcare and social care with regard to COVID-19 and,
• at least with regard to the NHS, potentially review the hiring of non-vaccinated new recruits.

At the time of writing it has simply been stated that “the government is continuing to work closely with royal colleges and professional regulators to strengthen guidance and consult on updating the code of practice on the prevention and control of infections in relation to COVID-19 requirements for CQC-registered providers of health and social care in England”. Updates to the code will be consulted on separately.

Whilst the Health Secretary confirmed that both sets of regulations would be revoked, he stated that the policy introduced for CQC-regulated care homes in England was right at the time (November 2021), because then the dominant variant of COVID-19 was the Delta variant. He commented that if someone working or deployed in a care home chose not to get vaccinated at the time, then it was their choice. If they want to reapply for a job in that sector when the restrictions are lifted, they will be free too, but he encouraged them to “make the right positive decision and get vaccinated”.

Position prior to 15 March 2022

Legislation revoking the requirements for CQC-registered care homes in England comes into force from 15 March 2022. The previous updates to this topic included how workers evidence that they have either had the COVID-19 vaccinations or are medically exempt; vaccinations outside of the UK; data protection considerations; risk assessments; the position with regard to new recruits, and guidance for care homes on acting lawfully towards staff, both in relation to unfair dismissal and under the Equality Act 2010.

The official guidance for care homes “Coronavirus (COVID-19) vaccination of people working or deployed in care homes: operational guidance” (“the Operational Guidance”) was originally incomplete and updated piecemeal, was updated again on 19 October 2021, and most recently updated on 20 January 2022, just 10 days before the U-turn. It remains to be seen whether, once the legislation is revoked, the Operational Guidance will be withdrawn completely or changed into recommendations only. At the time of writing it had not changed, and only included a note that the regulations would be revoked on 15 March 2022.

Evidence of vaccination status

Individuals can demonstrate their vaccination status in England by using the current NHS COVID Pass service (an individual’s NHS appointment card cannot be used as proof of vaccination status).

This can be done in three ways:

• the NHS App: An individual’s vaccination status can be found within the NHS COVID Pass service of the NHS App. According to the Guidance this will provide proof of the individual’s vaccination status and verify that they have had a complete course of a COVID-19 vaccination. Note that the updated Operational Guidance states that the Domestic NHS COVID Pass screen with the name, date of birth, 2D barcode and a green shimmer “valid” banner is not valid for proving vaccination status under the Regulations. The individual will need to scroll down and select “View COVID-19 records” and show them to their registered manager;
• the NHS website – NHS.uk: The NHS COVID Pass can be accessed via the NHS website. This displays the same information as is contained within the NHS app via an online web page – and can be accessed via Get your NHS COVID Pass; or
• the NHS COVID Pass letter: An individual can get an NHS COVID Pass letter sent to them in the post, which shows that they have been vaccinated against COVID-19. They can do this by:
  • requesting a COVID Pass letter online via Get your NHS COVID Pass or
  • calling 119

This letter can then be presented by the individual to the care home to demonstrate their vaccination status. Individuals may need to wait 5 working days to receive this.

Individuals need to have an NHS number and have been vaccinated in England, but they do not need to be registered with a GP surgery or have an NHS login to get an NHS COVID Pass letter.  The COVID Pass App or website can distinguish between vaccination status and Covid status (i.e. where you have had previously tested positive for Covid, or have received a recent negative Covid test). This is important for care homes because although Covid status may be acceptable for entry to some venues, unless an exemption applies, the Regulations require the complete course of two vaccinations rather than reliance on any other type of Covid status. The individual’s NHS COVID Pass via the NHS App or online service will be temporarily deactivated following a positive test. However an individual can still use the NHS App to demonstrate Covid vaccination status while it has been deactivated using the “travel” section.

Those vaccinated in Scotland can find information on how to obtain a record of their COVID-19 vaccination status at nhsinform.scot.

Those vaccinated in Wales can find information on how to obtain a record of their COVID-19 vaccination status at gov.wales.

Individuals vaccinated in Northern Ireland can find information on how to obtain a record of their COVID-19 vaccination status from health-no.gov.uk.

Updates to the Operational Guidance on 19 October 2021 and 20 January 2022

Since the above DHSC NHS COVID Pass guidance on proving inability to get vaccinated was published on 1 October 2021, the main/original Operational Guidance on the vaccination of people working or deployed in care homes was updated on 19 October 2021, and then again on 20 January 2022, with many additional helpful points clarified for care homes. The main points/expanded guidance relate to:

1. Exemption due to vaccination received outside the UK

Individuals who have been vaccinated outside of the UK are currently not recognised as having received the full course of vaccinations under the Regulations. Therefore, for the time being these individuals can continue to self-certify as being medically exempt by virtue of having been vaccinated abroad using the guidance on temporary medical exemptions for COVID-19 vaccinations for people working or deployed in case homes.

The NHS COVID Pass process currently does not apply to individuals vaccinated abroad and therefore for them self-certification regime will continue for the time being. However, the amending Regulations and updates to the Operational Guidance on 20 January 2022 confirmed the ways in which those vaccinated abroad would have been able to comply with the Regulations regarding stipulated vaccines or a “top up” dose of a UK authorised vaccine from 1 April 2022, if they or that part of the amending Regulations are not revoked.

2. Medical exemptions

Although the guidance on “Temporary Medical Exemptions” and “Proving you are unable to get vaccinated” refer to a number of different factors (set out above) which may give rise to a medical exemption, the updated Operational Guidance still refers to the Green book on Immunisation against infectious disease, Chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI).

3. Other measures

The Operational Guidance states that it is important for managers to carry out risk assessments for those individuals who are exempt from COVID-19 vaccinations. It is fundamental in care homes to evaluate the potential risk of the spread of COVID-19 whereby vulnerable residents could be put at substantial risk of those workers who are exempt from the vaccination. Further measures may need to be put in place for example, additional PPE or changing specific duties. Managers should also bear in mind those who are clinically extremely vulnerable. This will become even more important with the revocation of the vaccination legislation.

4. Recording vaccination or exemption status

Checking vaccination or exemption status refers back to the Operational Guidance’s section on demonstrating evidence (i.e. currently the NHS COVID Pass service). However, there then follows a large section for care home managers/providers (“registered persons”) on recording that evidence. They must keep a record of the vaccination or exemption status both of staff members and of those entering the care home (unless exempt) and the date that information was last checked. Except for new starters, those who are pregnant, those with a temporary medical exemption and those vaccinated abroad, the information only needs to be recorded once on the first time of entering and may be referred back to. However, care homes will have to check their records are up to date and will be able to share it with the CQC. The reason for any medical exemption does not need to be recorded, just the fact that they are medically exempt.

5. Data protection considerations

A large section of the updated Operational Guidance seeks to ensure that care homes have considered how recording vaccination or exemption status will be processing personal data, which must be in accordance with data protection law and therefore supported by appropriate amendments and updates to data protection policies and other data protection documentation. These records of medical exemptions and vaccination status constitute the processing of “special categories” of Personal Data under the Data Protection Act 2018 and UK GDPR. Therefore, the Operational Guidance reminds care homes that Data Protection Impact Assessments and Appropriate Policy Documents will need reviewing and updating with any additional lawful basis for processing the data. Please speak to us if you have not already done a Data Protection Impact Assessment or do not have an Appropriate Policy Document, which sets out specific information for special categories of data as required by the Data Protection Act 2018, or if you would like help updating them in line with the revocation of the legislation or if you continue a policy of mandating vaccination (which must be supported by a Data Privacy Impact Assessment as well as considerations in relation to potentially unfair dismissal or discrimination).

6. Visiting professionals

The guidance touches on those professionals who may not be aware of their need to produce evidence, potentially adding in a requirement to their contracts, or giving them advance warning of the need to send someone who can comply with the evidential requirements.

7. Guidance for staff, local authorities, residents and friends/relatives of residents

Several sections of the Operational Guidance are now directed, essentially with the same information, at the above categories of individuals and stakeholders. Care homes will find it useful to be able to refer such categories of people to these parts of the Operational Guidance (or reproduce it for particular categories).

8. Good Employment practice

This is perhaps now one of the most useful parts of the Operational Guidance (Annex A). As we know, employers should act with caution to avoid discriminating against workers who are medically exempt. Religious or philosophical beliefs are not grounds for exemption from the requirement for care home workers to be vaccinated. However, this section gives some very practical guidance on what that means both in relation to where a person is at risk of dismissal and where an employer may be at risk of unlawful discrimination. It advises that care homes consider devising a vaccination policy. It sets out helpful information on unfair dismissal grounds, fair procedures, and the interrelationship between the Regulations and the Equality Act 2010, giving some examples. It also discusses engaging with the workforce and collective consultation where required.

Interestingly, despite the Regulations having been made in July 2021 and not coming into force until 11 November 2021, the Operational Guidance states that even where, after investigation and consultation, the care home takes the decision to dismiss a staff member who does not comply with the Regulations, they should be given both statutory and any additional contractual notice, or pay in lieu of notice. Ordinarily, it states, non-compliance will not justify dismissal without notice.

What does this mean for employers?

Previously, care home providers which required workers to be vaccinated against COVID-19 were at risk of claims being brought against them for unfair dismissal and/or unlawful discrimination under the Equality Act 2010. This risk was significantly reduced as a result of the Regulations, as employers mandating vaccination will simply have complied with their legal requirements, and the Operational Guidance  clarified how care homes should deal with such cases. The situation is far less clear now following the revocation of the legislation.

In the recent case of Allette v Scarsdale Grange Nursing Home Ltd, the dismissal of a care assistant working in a nursing home who refused to be vaccinated (before the care home vaccine regulations came into force in England) was found by an Employment Tribunal (ET) to be fair. The ET also found that the interference with the employee’s “Right to Privacy” under Article 8 of the European Convention of Human Rights (ECHR) was justified in the circumstances of the information known at the time and the risk to vulnerable people. Ms Allette was fairly dismissed for failing to follow a reasonable management instruction. She later alleged discrimination on grounds of her Rastafarian beliefs, but conceded that she had not raised this at the time. The employer was entitled to conclude that her Rastafarian beliefs were not the reason for her refusal.

Although only at ET level, this case is highly significant, since it took place in the context of there being no legislation requiring vaccination in care homes, and also because it addresses the argument about the interference with ECHR rights. However, it must be noted that it was based on the circumstances at the time, which included what the employer knew about the effect of COVID-19, the effectiveness of the vaccine, and a death rate of 1,500 people per day. It is not at all clear that a similar approach would be taken in the light of emerging evidence of the lower risk of hospitalisation and mortality from the Covid-19 Omicron variant alongside the effectiveness of a two-dose vaccine course without a booster dose. Once the two sets of regulations are revoked, care home employers will be unable to rely on the grounds of “breach of a statutory restriction” as the reason for dismissal, and should not attempt to rely on it from the date of the announcement on 31 January 2022.

It is important for employers outside this sector, and the scope of the Regulations or amending Regulations, to understand that mandatory vaccinations for workers remains a very risky policy unless there are compelling reasons.

Care home providers may want to continue to encourage voluntary take-up as much as possible by educating their staff about the vaccine where for whatever reason the person remains in employment or the dismissal process, if relevant, has not yet been completed. Please speak to us urgently if dismissal is still being contemplated.

Care homes may also want to consider their own position, apart from the two sets of regulations, and whether they could justify their own policy of mandatory evidence of vaccination when the legislation is revoked. This is complex and should not be considered without our advice. The position regarding, for example, new recruits, may become clearer when the Department for Health and Social Care has updated its code of practice and written to regulators.

The Department for Health and Social Care had produced a toolkit  specific to the adult healthcare sector to help with this. It was regularly updated and included:

• a stakeholder Q&A on the COVID-19 vaccines
• guidance and resources addressing common concerns about the vaccines, such as fertility, ingredients, allergies and speed of delivery
• advice on how to reassure people about taking the vaccine
• video clips of clinical experts discussing the vaccines
• video clips and case studies of social care workers sharing their own vaccination stories

However, that toolkit appears to be currently unavailable, possibly because it is being updated to take account of revocation of the legislation.

The latest COVID Pass process and formal medical exemption letter had come as a relief to care home employers. Being able to draw the distinction between medical exemption and fully vaccinated workers helps care homes manage scenarios where the residents and staff in that care home might be vulnerable and extra care or PPE and procedures need to be put in place to make sure that they are safe.

Under section 60 of the Equality Act 2010, employers are prohibited from asking a job applicant health-related questions before making a job offer unless one of a limited number of exceptions apply. Subject to any further guidance on recruiting new staff from the Government, when publishing job advertisements, care home providers should make applicants aware of any policy they have regarding vaccination (although extreme care must be taken).

The Operational Guidance states that care homes should notify prospective staff of the requirement at the start of the application process and undertake appropriate checks, during the recruitment process, to ensure the individual is eligible to work in the care home – however this is no longer likely to be necessary. Following implementation of the amending Regulations, from 7 January 2022, evidence of vaccination status could have comprised only having one dose of the vaccine provided that, firstly, the new recruit started working at the care home 21 days after that first dose and, secondly, they receive their second dose within 10 weeks. The care home would have been able to deploy a worker 21 days after their first dose of the vaccine. After the period of 10 weeks from the first dose of an authorised vaccine, if the new starter had not received the second dose then they would not have been able to be deployed, but unless the Operational Guidance remains the same for those recruited prior to 15 March 2022, this is unlikely to matter in practice now. Once the legislation is revoked, it is likely that interviews for those who have not been vaccinated for any reason will no longer need to be conducted away from the care home.

This article was co-written by Tim Forer and Sarah Strathdee.

This article was first written on 21 July 2021, updated on 15 October, 27 October 2021, 14 December 2021, 26 January 2022, 1 February and 1 March 2022. As the situation with regard to this law is regularly changing, please contact one of our employment team lawyers for the latest position.