Employment Law Review – June 2021

This last month has seen a number of updates in employment law, which of course, include Covid-19. We expect that there will continue to be new updates as step 3 of the Government’s roadmap out of lockdown will now be in place until 19th July 2021 and the furlough scheme ends in September 2021.

COVID-19

In light of the Government’s ongoing vaccine rollout, despite the government not introducing compulsory vaccination measures across the population as a whole, multiple sources have reported that it is expected that the Government shall make the Covid-19 vaccination compulsory for staff in care homes. There is also some speculation as to whether this may also extend to NHS workers. These reports followed a consultation by the Department of Health and Social Care which focused on the proposal on making it a mandatory requirement for all care home workers to have the Covid-19 vaccine.

Further to the above, The Department of Health and Social Care has now published its response to the above-mentioned consultation on mandatory Covid-19 vaccination for care home workers. The Government’s response confirms that vaccination will become mandatory for care home staff, volunteers and anyone else who enters the care home for work purposes (subject to certain exemptions). There were also some further news reports suggesting that all care home workers will be given a 16-week period to receive the vaccination and if they do not have the vaccine during this 16-week period, workers may be at risk of losing their job.
It has been reported that the government will implement the mandatory vaccination requirement by amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to insert a new provision. The Government’s response has undoubtedly provided some clarification and certainty to the original consultation document. One of these key changes is that the Government has extended the scope of this policy to include all care homes in England registered with the Care Quality Commission, which is different to the original consultation documentation which stated that the scope of the policy was just to care homes with residents over the age of 65.

When examining the above, it is important to explore the idea of mandatory vaccination as a whole, not only in the context of the Coronavirus pandemic. Currently, employers are not able to compel employees to take a vaccine (of any kind) because The Public Health (Control of Disease) Act 1984 (“PHA1984”) provides that members of the public should not be forced to undergo any mandatory medical treatment. It is also important to note that the term ‘mandatory medical treatment’ within PHA1984 includes vaccinations.

Even before the above announcement was made by the Government, there have been some employers who have publicly confirmed that they will be following a “no jab, no job” policy for all employees as we see the gradual return of employees to the office after months of working from home. We anticipate that many other employers may seek to adopt this ‘policy’.

Employer’s that are considering the introduction of a blanket mandatory vaccination policy, should consider that such a policy could potentially give rise to indirect discrimination claims. A mandatory vaccination requirement could potentially disadvantage those with protected characteristics. For example, those who are not able to receive the vaccine at present due to age restrictions, or those who cannot be vaccinated for medical reasons. Many of the vaccines contain pig gelatine and employees may refuse to have the Covid-19 vaccine on the grounds of their religion or belief.

DISABILITY DISCRIMINATION

The Trades Union Congress (TUC) has called for the condition of long COVID to be formally recognised as a disability under the Equality Act 2010. In doing so, the TUC has also called for COVID-19 to be recognised as an occupational disease, which as a result, could potentially grant compensation for workers as a result of the increased legislative protections.

Considering that it is estimated that 65% of long-Covid suffers continued to have symptoms at least six months after they were originally infected, it will be interesting to see whether long-Covid will in fact be classed as a disability in the near future and further, whether there will be an increase in disability discrimination claims on this basis.

We hope that the above updates in employment law has provided a brief summary in not only the COVID-19 updates but other important changes in employment law. If you wish to receive detailed legal advice in this area, then please do not hesitate to contact our Employment Department:

Emily Aylott (emily.aylott@btmk.co.uk / 01702238504)
Samantha Hyslop (samantha.hyslop@btmk.co.uk / 01702 238514)
Fiona McAnaw (fiona.mcanaw@btmk.co.uk / 01702 238541).

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