COVID-19: what next for UK employers, Part 1David Whincupon September 16, 2021 at 2:32 pm Employment Law Worldview


At the end of our What Next webinar this week I announced boldly that either we had had no questions from the floor or I had done something hideous to the IT and lost them. With depressing predictability it was the latter, sorry.  In fact we got a good score of questions across a wide range of RTO issues.  Combining one or two which covered the same ground, the answers start here and will continue over the next few weeks:

There is a judicial challenge underway to new regulations making vaccines mandatory for care home employees – will it succeed?

I anticipate not, but for reasons as much political as legal.  Although the worst of it somehow now seems a long time ago, it must be remembered that the virus took a horrible toll on the oldest and most vulnerable members of our society, reportedly featuring on the death certificates of over 40,000 care home residents from March 2020 to April this year.  That is not just a huge human tragedy but also a lasting political liability which the government will be very keen to draw the teeth on before the next election.  These new regulations are an integral part of that. They are also a useful dry-run for the legislators in case similar rules have to be introduced in other sectors.

The challenge to them is being made on five grounds:

the new regulations are incompatible with existing laws prohibiting the enforcement of mandatory vaccines;
the government failed to consider the efficacy of alternatives to mandatory vaccines having regard to the take-up rate in care homes and cases of natural immunity;
the regulations interfere with the public’s right to “bodily integrity” and are severe and disproportionate;
they will disproportionately impact women and those from Caribbean backgrounds; and
the regulations are irrational and will lead to shortages in care home workers.

Of those, I think that (v) has the best prospects of stalling this legislation.   The remainder can probably all be justified and waved aside as emergency measures for emergency times, perhaps headed off by the promise of a near-term review of whether the vaccination requirement is still necessary.  However, if it is clear that implementing the regulations in their current form will cripple the care home system (especially in the run-up to the next election) and so perhaps do more longer-term harm than good to residents, it is possible to see a pragmatic High Court at least extracting concessions from the government sufficient to avert that threat.

It will probably also be said by the government that despite the emotive tones of the challengers to the new regulations, this is not in fact about “mandatory vaccinations” or “loss of freedom of choice”, merely the requirements imposed on you if you wish to retain a particular role in a particular industry at a particular point in time.  Like many other employees facing no-jab, no-job requirements imposed by their employer through contract rather than statute, there is absolute freedom to choose to maintain one’s “bodily integrity” without state sanction or compulsion, simply by finding another employer or relying on state support.  I suspect that the High Court will find that this being a hard choice for someone resisting the vaccine on non-medical grounds does not mean that it is not still a choice.

The question of what is “severe and disproportionate” must be looked at from both ends.  On the one hand, it will obviously take something pretty major as a response to be disproportionate to those reported 40,000 COVID deaths.  Against that background, can the High Court realistically be seen to give that much credence to anti-vax views, especially in circumstances where some 80% of the population has been vaccinated, the government’s encouragement to get on with it remains as vigorous as ever and the success of the vaccination in reducing serious illness, hospitalisations and deaths from COVID seems incontrovertible.  If the procedure were much riskier to the individual, on the other hand, or much less effective in practice, then the necessarily invasive nature of the vaccination could indeed become harder to justify.  But based on the facts as currently perceived by the government on good medical authority, I see little chance of that being the case here.

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