The Department of Health and Social Care have begun a consultation to decide whether to make vaccinations a condition of deployment for people who work within care homes.

The rapid spread of COVID-19 amongst care home residents has been well-documented throughout the pandemic, with outbreaks being rife throughout the country.

As such, the Government has launched a five week consultation which will weigh up whether it will be mandatory for care home workers to receive inoculation against the coronavirus.

Matt Hancock, Health Secretary, stated that older residents in care homes are “most at risk of suffering serious consequences” due to the virus. He talked of the “grave effects” it had on the group and said that it was “right to consider all options to keep people safe”.

According to data by the Care Quality Commission, deaths from COVID-19 within care homes have reached almost 29,000 throughout the UK since the pandemic began.

At present, 94 per cent of eligible residents have received, at least, their first jab whilst only 79 per cent of staff across the country have received the same.

The Government’s Scientific Advisory Group on Emergencies (SAGE) advised, to receive the minimum amount of protection against COVID-19, 80 per cent of staff and 90 per cent of residents needed to be vaccinated. However, there are some areas such as London which are significantly lagging behind, with only 68 per cent of staff currently inoculated.

However, this contentious issue has caused much divide within the care sector. Most notably, there is concern that this mandatory requirement should be non-negotiable for other staff who also work with older people outside of care homes.

Vic Rayner, Chief Executive of the National Care Forum, questioned how “it can be possible to focus mandatory vaccines on only one cohort of staff working with older people, when older people are very likely to experience care and treatment interventions from health staff and a range of other professionals.”

This was also echoed by Professor Martin Green, Chief Executive of Care England, who said:

Should the vaccine be mandatory for adult social care staff working in care homes for older people it begs the question whether it should not be mandatory for the NHS, those working in other care home settings, supported living, hospices, etc. as well.

However, Dr. Pete Calveley, Barchester Healthcare Chief Executive, called it a “professional duty” for “care home staff to accept the vaccine unless there is a medical reason they should not.”

Claire Brook, Employment Law Partner at Aaron & Partners, analysed the complex nature of navigating this requirement legally:

It is clear that preservation of life of vulnerable residents, service users and staff is a legitimate aim in considering mandatory vaccination, evidenced by the critically high incidences and spread of COVID-19 within the sector.

Additionally, the aim of reducing sickness absence levels and the strain faced by an already stretched workforce self -isolating could also be legitimate. During the consultation period, the Government will no doubt be carefully considering whether the proposed measure is proportionate in seeking to achieve these aims.

However, there are a number of complex legal issues that would arise from such a policy which include the protection of an individual’s right to a private life and an individual’s bodily integrity (Human Rights Act 1998), as well as protection from discrimination under the Equality Act 2010protection from unfair dismissal (for qualifying employees), together with contractual considerations for employers.

The Government should therefore provide clear guidance for employers if mandatory vaccinations are introduced.

It is expected that the consultation will conclude on the 21st May at which point the Government will be expected to make a decision on whether this will become a condition of deployment for care home workers.