This month has seen some rapid legislative change to bring in a requirement for most staff entering residential care homes to be double vaccinated against Coronavirus (unless there is a clinical reason not to have the vaccine). In our first article this month, we consider some of the employment law implications of this change which comes into force on 11 November 2021.
We also report on the Government's response to its recent consultation on sexual harassment in the workplace, including stated intentions to introduce a duty requiring employers to prevent sexual harassment, and to introduce legal protections from third-party harassment.
A recent appeal decision in the Scottish equivalent of the Court of Appeal provides interesting reading for employers dealing with disciplinary issues where employees are being investigated by the police. We report on the case of L v K, where dismissal followed a decision to drop the prosecution of a teacher charged with possessing indecent images of children.
In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT considered whether a claimant bringing an indirect sex discrimination claim needed to bring evidence to show that women are subject to the "childcare disparity", or whether courts can accept without evidence that women as a group still bear a greater proportion of child-caring responsibilities
We also feature the last in a series of articles from our Employee Ownership team, focusing on the ingredients for the long-term sustainability of an employee owned business.
I hope you can join us for the next in our series of free Employment Law Brunch Briefings which takes place at 10am on Tuesday 3 August. The subject is the topical issue of changing terms and conditions through dismissal and re-engagement on new terms, often referred to in the press as "fire and re-hire". This session will consider the risks of this approach, including those to reputation and workforce relations, discuss alternatives and ways to limit the legal risks. Please see the link below for more information and to book your place.
We are always interested in feedback or suggestions for topics that may be of interest to you, so please do get in touch.
Regulations to make Coronavirus vaccination compulsory for most care home staff are signed into law
Vaccination requirement will apply to most people working in CQC regulated care homes from 11 November 2021.
On 22 July, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021(the Regulations) were signed into law. In this article, we consider the new rules and some of the implications for registered care home employers impacted by them.
For consideration of the wider question of whether other employers can require staff to be vaccinated, please see our previous article: Can employers insist that employees are vaccinated against covid-19? (available from our website).
Under the Regulations, it will be a requirement for all Care Quality Commission (CQC) registered care home providers to ensure that no-one enters the care home unless they fall into one of a number of categories. These include:
- they can provide satisfactory evidence to the registered
provider that:
- they have received the complete course of an authorised Coronavirus vaccine; or
- they should not be vaccinated with any authorised vaccine for clinical reasons;
- they are a member of the emergency services or it is reasonably necessary for them to provide emergency assistance in the home;
- it is reasonably necessary for them to provide urgent maintenance assistance in the home;
- they are visiting a service user who is dying; or
- they are providing comfort or support to a bereaved service user.
The restriction will apply to those employed by the registered provider but also to others entering the home, such as contractors and visiting medical professionals.
Care home service users themselves, and their friends and relatives who are visiting service users in the care home will not be subject to the restriction. It will also not apply to people under 18 years of age. However, the new rules will impact on volunteers visiting the home unless they fall into one of the categories above.
The Government consultation
This follows the Government's response to its recent consultation ( link here) on whether vaccination should be a requirement for staff working in older age care homes. The consultation response shows that care home providers were mostly in favour of the initial proposals but that service users and relatives of service users were mostly opposed. Individuals working in adult social care were divided with just under half supporting the policy. Overall, 57% of respondents were not in favour of the proposals.
Despite these mixed views, the Government forged ahead with the proposals, broadening out the requirement to include all CQC regulated care homes and not just those caring for older age residents.
Medical exemptions to the vaccine requirement
Government guidance for the sector is expected soon. It is hoped that this will give care home providers more detail on the scope of "clinical reasons" for exemption and the process of implementation.
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