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Repeal of mandatory vaccination regulations

An amendment to the Health & Social Care Regulations, which made COVID-19 vaccinations a condition of employment in all CQC registered care homes, NHS and Healthcare settings in England will now be repealed, it has been announced. The amendment had been made in response to the increased number of infections relating to the Delta variant, but in the time taken for the policy to be drafted and implemented, the Delta variant has been overtaken by the Omicron variant, which is – by comparison – milder and causes fewer hospitalisations.

On 31st January 2022, the government announced they would begin a period of consultation from 9th to 16th February on the withdrawal of the amendment. 90% of the 90,000 responses received supported the withdrawal. It was subsequently confirmed on 1st March that the regulation will be repealed with effect from 15th March 2022.

Despite the repeal of the regulations, the government still strongly encourages social care staff to take up their COVID-19 vaccinations but as a personal choice rather than a mandatory requirement. They said that although things had now changed, it was still “a professional responsibility for health and care staff, and others who work in the health and social care sectors, to be vaccinated”. Figures show that over 9 out of 10 NHS workers and 95% of all staff at care homes have been double-vaccinated. Nearly 9 in 10 home care staff had received at least one dose.

The change in policy has caught many employers midway through consultations in advance of the original 1st April 2022 deadline, and doubtless many will be considering what they should do now. Whilst some will be thinking about abandoning those plans and perhaps trying to entice back staff who had left their jobs rather than accept the vaccine, there has been a significant rise in the number of care homes and other healthcare workplaces who, for reasons of their own and regardless of the change in the law, still want to implement a “no jab, no job” policy going forward.

They are, of course, at liberty to do so but they would no longer have the regulations to back up the decision and give it legal weight. It would instead be a company policy and therefore, the employer would need to be able to demonstrate that it is “a proportionate means of achieving a legitimate aim” in order to justify their action if it resulted in a claim to an Employment Tribunal.

Similarly, reasons like religious or philosophical belief would not have applied if the requirement to get vaccinated was a statutory one rather than one of individual employer policy. Henceforth, the employer will need to take those factors into consideration if an employee refuses to be vaccinated and cites religious or philosophical grounds, although there are complex legal tests that must be satisfied before a tribunal will accept them as a legitimate cause of discrimination.

If you are wondering how this announcement will affect your business and would like advice and assistance around what steps to take, please contact our rradarstation team on 0800 955 6111 or visit our rradar website www.rradar.com.