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Will The Covid Vaccine Be Compulsory for Care Home Staff in Wales?

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The Covid vaccine is to become compulsory for care home staff at Care Quality Commission registered care homes in England, unless they are exempt on medical grounds. The position in Wales is different. The Welsh Government has indicated, most recently on 9th July, that “it is the view of the Welsh Government that people should not feel forced into vaccinations”.

Employers in this sector in England have voiced concerns that the move will make it harder for them to recruit and retain staff, it could prompt existing staff to quit and it could add to the number of potential legal claims against employers on the grounds of discrimination or human rights breaches. The broad sentiment of those in the industry seems to be that seeking to persuade rather than mandate the vaccine is the way forward.

We are faced with the competing interests of protecting care homes residents, reassuring residents’ families of their safety and preserving the rights of the employees or workers who may not wish to have the vaccine. However, if the vaccine is to become compulsory in some settings, then at least employers in England will have the legal protection of this being directed in law.

It is clear that the Welsh Government has no plans to introduce compulsory vaccines for care home workers and others in similar settings here in Wales.

In fact, its guidance to employers, strongly cautions against any actions to force the issue of vaccination, highlighting that certain groups may be either unwilling or unable to receive the vaccine due to “protected characteristics” under the Equality Act 2010 such as: age, disability, pregnancy/maternity, sex, race and religion/or belief.

The Welsh Government’s guidance goes further, reminding employers of their legal obligations not to potentially discriminate by treating non-vaccinated staff less favourably, adding that “reasonable adjustments” may be required in some cases (it is suggested “offering regular testing for unvaccinated staff or offering an alternative role at the same grade or level where there is less risk of transmitting the virus”).

Furthermore, employers must also be careful not to discriminate potential candidates at interview by requesting proof of vaccine, or, from seeking to unilaterally change terms and conditions of existing staff by making vaccination a condition of their employment.

It seems to me that it is going to be very difficult for some employers to successfully navigate employment issues arising from the vaccine and undoubtedly, there will be Tribunal litigation as a result.

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