In our last blog on mandatory vaccinations, we wrote about an open letter written to the Department of Health and Social Care challenging the introduction of mandatory vaccinations for workers in care homes (unless they have been vaccinated or they are exempt on clinical grounds). The issue of the legality of such a requirement has now been determined by the High Court of Justice in what was a renewed application for permission to proceed with a judicial review challenge to the legality of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “2021 Regulations”). The presiding judge, Mrs Justice Whipple DBE handed down a swift and decisive judgment rejecting the claimants’ applications on all counts (Peters & Anor, R (On the application of) the Secretary of State for Health and Social Care & Anor [2021] EWHC 3182 (Admin)).

Principally, it was argued by the claimants that s.45E of the Public Health (Control of Disease) Act 1984 (PHA) is engaged by the 2021 Regulations, albeit the 2021 Regulations were introduced pursuant to powers in sections 20 and 161 of the Health and Social Care Act 2008 (HSA), and when the provisions of the PHA and the 2021 Regulations are read together, s.45E precludes the Government from requiring mandatory vaccinations. The basis of that argument was that s.45E provides that regulations made pursuant to s.45B or s.45C of PHA may not include provisions requiring a person to undergo medical treatment.

Justice Whipple determined that positon to be untenable, stating, “On its face, s.45E says that no person can be compelled to undergo medical treatment, but that is not, on a proper understanding, the effect of the 2021 Regulations, which do not mandate vaccination. The way they work is that the individual retains the autonomy to decide whether to be vaccinated or not; the 2021 Regulations impose a consequence, depending on the choice a person makes, and preclude someone who has chosen not to be vaccinated from taking up work in a care home unless they come within an exempted category”.

In addition, Justice Whipple also clarified that even if s.45E was capable of application to the current situation, the 2021 Regulations would still be permitted because they were introduced pursuant to the powers of the HSA, not the PHA.

Additional grounds which were argued by the claimants centred around the Government’s strategy, alleged failure to consider alternative options and statistics that were relied upon. In brief, Justice Whipple stated that the government is, naturally, afforded a broad discretion to determine policy decisions of this nature and this has been confirmed in many previous cases decided by domestic courts and Strasbourg courts.

Further to the 2021 Regulations concerning care home workers, the Government announced last month that it would be introducing requirements for all health and social care workers, including volunteers who have face-to-face contact with service users will need to be vaccinated too. These extended requirements will start being enforced from 1 April 2022, subject to Parliamentary approval of the regulations. Whilst most NHS workers are already fully vaccinated (government stats show 89.9% of NHS staff have had both doses of a Covid-19 vaccine), there is still a significant proportion ‘domiciliary care workers’ who are yet to have had both doses.

In light of the decision in Peters & Anor, health and social care workers, who are not fully vaccinated against Covid-19 and who do not have a medical exemption, should give careful consideration their employment situation because in the event that mandatory vaccinations are required for all health and social care worker roles, employers will not lawfully be able to employ them come 1 April 2022.

If you have any queries about this topic, please contact Elliot Francis or any member of the Employment team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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