The Guardian have published news of a leaked document saying growing evidence on the Omicron variant casts doubts over the new law’s “rationality” and “proportionality”. The document is alleged to state:

“The low VE [vaccine effectiveness] against infection (and consequently effect on transmission) plus the lower risk posed by Omicron brings into question both the rationality of the VCOD2 policy and its proportionality and makes the case for vaccination requirement weaker than when [ministers] decided on the policy."

The influential Conservative backbencher Mark Harper is reported as saying: 

"Forcing NHS and social care staff to get vaccinated or get the sack wasn’t a sensible policy in December, when I and many of my backbench colleagues voted against it."

“Now we’ve learned more about both vaccine efficacy against Omicron transmission and its severity, it looks increasingly foolish.

“Ministers would be wise to rethink the policy and avoid putting even more pressure on our NHS by sacking tens of thousands of health and social care workers in the next few weeks. When you know something won’t work, it’s right to change course.”

With Boris Johnson's political future hanging on a knife-edge he may have other things on his mind but currently, he may do anything to appease his backbenchers. Social care needs clarity and quickly if there is going to be a change of plan. Social care providers are dedicating significant resources to preparing for the new regulations and responding to employees who do not wish to be vaccinated.  

Currently, providers will be able to fairly dismiss employees who do not agree to get vaccinated in time for 1 April if they follow a fair process. The new legislation could only be challenged through a successful judicial review. The leaked document will fuel the potential for a successful judicial review challenge and the prospect of being found to have implemented an irrational policy will add fuel to the concerns of some Conservative MPs.  

It is important that Sajid Javid urgently provides a response to the publication of the leaked document stating clearly whether the Government maintain their view that the policy is proportionate, given the further damage its implementation will undoubtedly do to staffing levels within social care.