My prediction that the mandatory vaccination regulations for care homes would be subject to legal challenge has been realised with Jackson Osborne employment lawyers serving a pre-action letter on the Government in early August.
We expect formal proceedings will be issued in the near future. The letter is well reasoned, raising a range of arguments the strongest of which I consider is that the regulations are disproportionate on human rights grounds, that there has been insufficient inquiry and that the regulations are irrational.
The letter refers to evidence which they argue suggests vaccination does not reduce the risk of transmission. It highlights less restrictive alternatives to mandatory vaccinations, including continuing a voluntary vaccination programme, implementing a testing requirement for all persons entering care homes and requiring the use of PPE. It highlights that it is arbitrary to have singled out care workers in care homes.
The letter also rightly highlights the failure of the Government to consider the impact on staffing shortages that the regulations would have in conjunction with the existing unfilled vacancies in the sector. Many providers in the sector fear they are facing the perfect storm, which may mean they cannot employ sufficient suitable staff to maintain high-quality service provisions.
So, will the legal challenge be successful? That is very hard to call. I consider a number of the arguments will fail but ultimately, I consider the High Court may well accept that the regulations are unlawful. However, no provider should change its approach to implementation by second-guessing what will happen. It is not for care providers to decide whether the Government have acted lawfully, and it serves no useful purpose if we consider being drawn into discussion or argument with staff about it. Sadly, that means continuing the discussions with staff to persuade them to be vaccinated and issuing notice of dismissal to those staff required to work in care homes who are refusing to be vaccinated and are not clinically exempt. If the Regulations are subsequently found to be unlawful those decisions can be overturned.
My view is that if the Government achieve a 90% uptake across the care home sector by introducing the regulations, they will consider that a success, even if the regulations are not found to be lawful, they will have served their purpose. I will provide further updates as the case
The government last month calculated that in a worst-case scenario as many as 68,000 care workers – up to 12% – could be lost as a result of the decision to make vaccination a condition of employment in care homes. A more likely prediction is 40,000, but care managers say that even small numbers of people refusing the vaccine will impact services because rotas are already threadbare, with well over 100,000 vacancies in the sector.