Mandatory Covid-19 Vaccinations for Care Home Workers

18 June 2021

This week, the Government announced that Covid-19 vaccinations will be made compulsory for care home staff, raising strong emotions on both sides of the argument.

The new legislation will mean that, from October, anyone working or volunteering in a Care Quality Commission (CQC)-registered care home in England must have two doses of a COVID-19 vaccine.

The law, which is subject to parliamentary approval and a 16-week grace period, will apply to all workers directly employed by the care home or provider and those employed by an agency, as well as volunteers. It will also apply to those coming into care homes for ancillary services, such as tradespeople, hairdressers and beauticians. The rule will not apply to those who have a medical exemption. Anyone who is not vaccinated will face being redeployed away from front-line care or potentially losing their job.

The law will be implemented through an amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It will be the responsibility of the care home managers to check evidence that their workers are vaccinated or medically exempt. Responsibility for monitoring compliance will lie with the CQC and they will be advised to take a risk-based and proportionate approach to enforcement.

This push for mandatory vaccination follows concerns about the uptake of the vaccine by those working in the care sector, with NHS records showing that more than 50,000 of the 1.5 million people working in health and social care are still unvaccinated.

According to the latest data 84% of staff in older care homes in England have had one jab, while almost 69% have had two.

However, this masks significant regional variations. In Hackney for example, only 66.7% of staff in older care homes have received their first jabs, while 58.6 have had two.

Compulsory vaccinations will save lives

Any debate about mandatory vaccination inevitably elicits strong reactions and must be handled with careful sensitivity so as not to undermine public support for the vaccination programme.

It is now widely thought that the arguments in favour of protecting care home residents from potentially infectious staff are stronger than giving people the right to choose whether they want to be vaccinated.

With more than 40,000 residents in care homes having died of COVID since the pandemic began, alongside almost 150 care workers, it is incontrovertible that those living and working in care homes are extremely vulnerable and deserve the utmost protection.

Mandatory vaccination is also critical for preventing the onward spread of the virus via the friends and family of residents who are visiting.

Staffing issues are the biggest concern

However, there are also a number of reasons why an employee might not be able, or wish to, have the vaccine, such as disability/medical reasons, pregnancy, or religious and cultural beliefs. 

Vaccine hesitancy is highest among young females and certain ethnic minorities, precisely the demographic who are more likely to seek work in this sector. Given care homes are already chronically understaffed, mandatory vaccination is therefore not only likely to deter potential new recruits, but also drive out those who are already working there.

While unvaccinated staff could be redeployed away from front line work, in practice this is very difficult, especially in smaller homes, and will put a significant strain on day-to-day operations.

The issue of an individual’s right to choose is central to this debate. Some may feel strongly that the legislation removes the opportunity for genuine consent, and it is possible, depending on how the new law is enacted and enforced, that the government and public health authorities may be open to a judicial review claim.   

The policy will also give rise to concerns about discrimination . A belief that vaccines could be harmful or counter-productive may well qualify for protection from discrimination as a religion or belief. Provided they act reasonably, employers will be able to defend any claims by saying the policy is a proportionate means of achieving a legitimate aim – protecting the lives of vulnerable people in care homes is surely a legitimate aim and applying the law will likely be a proportionate means of achieving it. However, any discriminatory impact the law has will be a mark against the government if there is a judicial review.

Although it should be noted that the Equality and Human Rights Commission has concluded that it is ‘reasonable’ to legally require care home staff to be vaccinated, while implementing safeguards to minimise the risk of discrimination.

What is clear is that while the debate over mandatory vaccination will inevitably continue, it is vital that all those affected must be given the advice and support they need to ensure their concerns are effectively addressed.

While the Government has now decided to follow the path of compulsion, peer-to-peer persuasion regarding the jab is likely to be equally important in ensuring the long-term safety of everyone living and working in care homes.

If you would like to understand further the implications of this proposed legislative changes, please get in touch.

About the Authors

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations.

Sophie Kemp is an experienced public lawyer, advising on major public inquiriesjudicial review, and modern slavery and human rights.  Sophie acts for individuals, charities, companies and regulatory bodies in judicial review litigation. She has considerable investigative and public inquiry experience representing individuals, institutions, charities, public figures and senior professionals in major public inquiries, inquests, IOPC investigations, and before Select Committees. 

Mark McWilliams is a Senior Associate in the Employment team who acts for employers and employees. Mark advises individuals who have been dismissed or discriminated against or employers who are dealing with difficult and complicated employment disputes.


Latest blogs & news

Recent tribunal cases involving Covid-19

Nick Ralph looks in detail at recent cases that have stemmed from the pandemic, including a refusal to attend work due to fear of contracting the virus.

The Terms of Reference for the Scottish Covid-19 Inquiry

As we await the publication of the terms of reference for the UK wide Covid-19 Inquiry, in this blog I consider the key features of the recently published terms of reference for the Scottish Inquiry into the Covid-19 pandemic.

The Covid-19 Inquiry – the importance of the terms of reference

Any day now the Covid-19 Inquiry will publish draft terms of reference. This will be a significant event.  Once agreed, the terms of reference will determine the scope and length of the inquiry which is due to begin its work in the Spring.  In turn this will have a direct impact on how valuable the inquiry turns out to be.  

How HR should prepare for a workplace investigation

Richard Fox and Clodagh Hogan explain the questions people professionals should ask prior to conducting an inquiry into a dispute between employees

Investigations being conducted into workplace disputes have increased recently, possibly partly due to the rise in the number of sexual misconduct in the workplace allegations since the advent of the #MeToo movement.

Planning is key to workplace investigations and, if you are considering carrying out an investigation, ask yourself the following questions at the outset:

Flexible working – fit for firms?

Much has been said about the proposed changes to the flexible working regime announced by the Government in its Consultation Paper on 23 September 2021.

The right to equality in fertility treatment

A same-sex couple have commenced a significant test case against a branch of the NHS fertility sector for discrimination against them on grounds of their sexuality. 

Mythbusting: Motivation in Starting a Private Prosecution

Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty.  Conducted badly they can be an expensive mistake with far reaching consequences. 

In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether having an ulterior motive in starting a private prosecution can lead to problems down the line.

Mythbusting: Recovery of Costs in Private Prosecutions

Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act.   Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty.  Conducted badly they can be an expensive mistake with far reaching consequences. 

In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions.  In this blog we look at whether the private prosecutor is entitled to recover their full investigation and legal fees at the end of the case.

Court considers that intransigent public inquiry witnesses will often give evidence once they have been compelled to attend

In a 16 November 2021 blog, I described how refusing to give evidence to a public inquiry might play out. Another new case, Chairman of the Manchester Arena Inquiry v Romdhan [2021] EWHC 3274 (Admin), reinforces my view. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.


Essential Planning for the COVID Inquiry - Sophie Kemp provides insight for the Carer

Given a judge-led inquiry into how the Scottish Government handled the COVID pandemic will start before the end of this year, many are anxiously awaiting news of the Government’s promised UK- wide public inquiry.

Back in May 2021, No 10 committed to that inquiry starting in Spring 2022. Yet months on, details are scant. Who will Chair it? What are its terms of reference? Yes, there may be six months to go, but vital questions remain before any inquiry of this national significance and stature begins.

Harcus Sinclair v Your Lawyers - Another nail in the coffin of solicitors’ undertakings?

Every solicitor knows that an undertaking is serious stuff.   Arguably it is the greatest power available to a solicitor.  A promise, if broken, that will lead to immediate and serious consequences for the giver.  As such it can be relied upon to the ends of the earth.  The power of undertakings has meant that they sit at the heart of every property transaction, bridging the time gap between the sending of money and the receiving of title.  They are also used in other areas of commercial life and as part of litigation.  The “brand” of a solicitor’s undertaking is so powerful that little thought is given as to where their power comes from. 

Back to the workplace – the new guidance and key considerations for employers

With lockdown restrictions moving to “Stage 4” of the Government’s roadmap to recovery, one of the key questions will be what this means with regard to returning to the workplace and, in a recent article, we considered the rights of employees on this issue.

Mandatory Covid-19 Vaccinations for Care Home Workers

This week, the Government announced that Covid-19 vaccinations will be made compulsory for care home staff, raising strong emotions on both sides of the argument.

eSports vs. the Law

Gone are the days of computer gaming being viewed as a secluded activity; gaming is now a thoroughly social experience that attracts a global audience of millions and players can compete for large sums of money and celebrity. This burgeoning industry is largely in a virtual world and has developed in a blockchain, decentralised fashion. Often the UK government talks up the UK gaming industry and how keen the government is to support this sector, and there have been instances that show support, but when it comes to playing games competitively, law and regulations have not yet caught up.

The importance of seeking support from your employer when going through a divorce

The breakdown of a relationship is a challenging and stressful time, even when you and your partner are on relatively good terms.

There are a number of support services we recommend to help manage the strain which comes with relationship breakdown and the significant changes to your and your children’s circumstances. People often go first to friends and family and then perhaps to a lawyer, counsellor or financial advisor. Many people do not feel comfortable talking to their employer about their circumstances and in this blog, we explore how it can be important from both a personal as well as family law and employment law perspectives.

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

New Year, New job? Top 10 tips for a Senior Executive negotiating a new employment contract

As 2020 drew to a close, many people had high hopes for 2021.However, the virulent and unforgiving COVID-19 pandemic has ensured it has not been an easy start to the year for most.

Some senior executives will be looking for a change, others may have fallen victim to one of the rounds of redundancy which have resulted from the pandemic.

The SRA’s updated NDA warning notice introduces welcome clarity

On 12 March 2018 the SRA published its warning notice on the use of non-disclosure agreements (NDAs). This was in the wake of the widespread publicity at the time given to NDAs which had been considered too draconian in reach and effect.

Progression of employees from a BAME background: identifying and overcoming the barriers

According to Diversity UK, in 2018 roughly 13.8% of the UK population was from a minority ethnic background and 40% of the population in London were from the Black, Asian & Minority Ethnic (BAME) background.

Employment Lawyers Association’s Race Equality Committee

The global events of this year including the Black Lives Matter movement, the apparent disproportionate impact on the BAME population of COVID-19 and news that the ethnicity pay gap remains significant, have again brought the issue of lack of racial equality to the fore.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility