From 11th November 2021 the law will require anyone entering a residential care home to be fully Covid 19 vaccinated.  That applies to contractors such as electricians and plumbers as well as care home staff..  So, if your employees, workers or self-employed contractors are expected to undertake repairs or to work in any way in a residential care home you can require them to be Covid 19 vaccinated.  And, in order to comply with the law, you will need to ask for proof of vaccination which they will also need to show to care home staff being being allowed entry.  Proof is available through the NHS App; the little card you get when vaccinated is not proof as the card s are easily forged.

For those organisations that do not have working obligations in residential care homes, the situation is much more nuanced.

You should start with a risk assessment.  The Health & Safety at Work Act 1976 requires all employers to take steps to protect their employees and workers.  But there are many things that employers can do to mitigate any Covid 19 risk that do not extend to vaccination; sanitisers, regular cleaning, social distancing, masks and good ventilation are some of the ways you can protect your workforce which are short of vaccination.  It might be difficult to show conclusively that vaccination is essential..

Requiring vaccination without being able to show a necessity via your risk assessment could cause you significant problems.  The mere act of questioning your staff as to their vaccination status may be in breach of the General Data Protection Regulations – why are you asking, what are you going to do with the information, do you have a legitimate reason for asking?

If you decide to bite the bullet and ask the question anyway, then there are pathways to discrimination claims. For example, many young people have not yet had the opportunity to receive their second vaccination and hence there may be age discrimination.  There are some people who, for medical reasons, are unable to have the vaccine which could lead you to disability discrimination claims.  Some religions do not allow vaccination, Christian Scientists for example may only be vaccinated if it is required by law.

There is also the unanswered question as to whether the anti-vaxxers could claim that their stance is a philosophical belief as set out in the Equality Act 2010.  No such cases have been heard in Tribunal as yet so it is not possible to know for certain.  To be a philosophical belief the Courts have agreed the following test:

  • It must be genuinely held;
  • It should not simply be an opinion or viewpoint based on the current information available;
  • It must concern a weighty and substantial aspect of human life and behaviour; and
  • It must be worthy of respect in a democratic society.

My personal view is that those who believe the vaccine to be unsafe (or similar) are unlikely to pass the test of a genuine philosophical belief but that is just my opinion and should not be relied upon.

Want to discuss this matter, or any other matter, further?  You can reach me on 07766167160 or at brenda.davidroper@btinternet.com.

 

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