Call for evidence

Our response to the

consultation on making
vaccination a condition of
deployment in older adult
care homes

Details
Title of consultation: Making vaccination a condition of deployment in older
adult care homes

Source of consultation: Department of Health and Social Care

Date: 21 May 2021

For more information please contact

Kelli Jones: Senior Associate, Work Policy
kelli.jones@equalityhumanrights.com

Equality and Human Rights Commission

Arndale House, The Arndale Centre, Manchester, M4 3AQ

Content

equalityhumanrights.com
Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

Summary...............................................................................................................2

Our response........................................................................................................4

Section 60 of the Equality Act 2010...................................................................7

Side effects and Statutory Sick Pay...................................................................7

Vaccine hesitancy..............................................................................................8

Monitoring and review........................................................................................9

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

Summary

1. The Equality and Human Rights Commission (the Commission)

welcomes the opportunity to provide evidence to the Department of
Health and Social Care’s consultation on making vaccination a
condition of deployment in adult care homes. The Commission is a
statutory body established under the Equality Act 2006. It operates
independently to encourage equality and diversity, eliminate unlawful
discrimination, and protect and promote human rights.
2. The Commission supports the safe and rapid implementation of the
ongoing national programme to provide vaccinations against
coronavirus. This programme is an essential step in protecting public
health and the right to life and removing significant restrictions to our
freedoms, participation in the community, and family lives.
3. The coronavirus pandemic has had a significant negative impact on
people in care homes - both the heightened risk to life posed by the
virus, and the significant impact of restrictions on their physical and
mental health. There are also specific risks and obligations facing care
professionals working so closely with people vulnerable to the virus. A
proportionate approach to requiring vaccines for care home staff could
help ease restrictions and allow them to perform their jobs safely, and
residents to live more independently, socialise and access activities,
and have meaningful contact with family and friends.
4. As we noted in our submission1 to the Cabinet Office review of
coronavirus status certification, equality and human rights standards
can provide a clear and practical framework to help government reopen
society. In implementing vaccination schemes the Government must
comply with the Public Sector Equality Duty (PSED), the Human Rights
Act and international human rights obligations.

EHRC (2021) Our response to the COVID status certification review

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

5. In legislating for mandatory vaccination the Government is right to

prioritise protection of the right to life for residents and staff. In our view
it is therefore reasonable to require care home staff to be vaccinated in
order to work directly with older and disabled people, subject to some
important safeguards to ensure the requirement remains proportionate
and to minimise the risk of unlawful discrimination or breaches of care
workers’ human rights.
6. For example, Government should take appropriate steps to mitigate the
risk of indirect discrimination for those who cannot receive the vaccine
for medical reasons by implementing legislative exemptions. It should
also ensure that there is easy access to vaccination for all, and that
workers don’t face any financial detriment resulting from being
vaccinated, such as additional travel costs, or loss of pay if they have
side effects from vaccination and either don’t receive sick pay at their
usual rate or are ineligible for Statutory Sick Pay. This will ensure that
the right to just and favourable conditions of work is upheld, in line with
the Government’s obligations under the International Covenant on
Economic, Social and Cultural Rights. 2
7. As well as safeguarding residents’ right to life, mandatory vaccines for
staff, implemented proportionately, could help ease restrictions in care
homes, including on socialising, activities and visits from friends and
family. This would help support residents’ right to a private and family
life,3 to health4 and to live independently5, and also reduce the risk to
workers when coming in close contact with residents.
8. The Government should:

Article 7 International Covenant on Economic, Social and Cultural Rights

Article 8 ECHR.

Article 12 of the International Covenent on Economic, Social and Cultural Rights protects the
right to ‘the highest attainable standard of physical and mental health’. Reduced staffing levels
and limited access to visits from family members and care professionals may result in residents’
physical and mental health deteriorating. In extreme cases, reduced levels of care could
potentially fall within the scope of inhuman and degrading treatment, contrary to Article 3 ECHR.

Article 19 of the UN Convention on the Rights of Persons with Disabilities protects disabled
people’s right to live independently as part of the community, with the same level of choice and
control as non-disabled people.

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

a. ensure any mandatory vaccination requirement contains a sunset

clause, and is subject to regular review to ensure that it remains
proportionate, with decision-making transparent and clearly
documented;
b. provide legal exemptions for people who cannot be vaccinated for
medical reasons;
c. provide clear guidance to employers and service providers on how to
implement mandatory vaccination in a way which prevents unlawful
discrimination under the Equality Act 2010 (the Equality Act). This
should set out how employers can ensure that job applicants meet
vaccination requirements in a way that is compliant with section 60 of
the Equality Act, which prohibits health-related questions during
recruitment subject to limited statutory exceptions. Guidance should
also make clear to employers that the mandatory vaccine requirement
only applies to care homes, and that job adverts should clearly state
that those who are exempt can still apply for roles;
d. ensure that proof of Covid-19 vaccination status or medical exemption
is supplied to workers free of charge, and is available in accessible
formats.
e. ensure that employees, and those on zero hours contracts, are given
paid time off at their usual rate to be vaccinated, or if they are off sick
due to vaccination side effects;
f. continue to take steps to engage with groups with low vaccine uptake
to understand the underlying reasons, and monitor the implementation
of the mandatory scheme to ensure that vaccination as a condition of
employment upholds the right to work and does not deter or bar
people from working in the sector.

Our response

9. Protecting the right to life has rightly been prioritised throughout the
pandemic, particularly for those at a greater risk of severe illness, such
as care home residents. The nationwide vaccination scheme is making
a significant difference to all our lives, particularly to older people,
disabled people, and other at risk groups, who have faced the most
serious risks over the past year.

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

10. Mandatory vaccination for care home workers would be a significant

departure from current public health policy, although there are
precedents; for example, legislation allows some NHS Trusts to require
hepatitis B vaccines for those working in high-risk environments, even
though it’s not mandatory in legislation. Emerging evidence suggests
that the majority of people are willing to be vaccinated and that
vaccination provides some protection against transmission, and good
protection against serious illness and death from coronavirus.
11. Making vaccination a condition of deployment in care homes could
therefore be an effective way of protecting service users who are at a
particular risk. However, any potential discriminatory impact must be
considered in detail by Government, in line with its obligations under
the Public Sector Equality Duty.6
12. A proportionate approach would, in our view, require legislative
exemptions for those small numbers of individuals who are unable, for
medical reasons, to be vaccinated, and could include other provisions
for these workers which protect care home users, for example access
to rapid testing, use of PPE, and redeployment for workers who can’t
receive the vaccine, or who may face delays in accessing suitable
vaccines (for example if they are under 40). Employers must also
continue to comply with their duty to make reasonable adjustments for
disabled workers7.
13. The Government should take steps to reduce any economic
disadvantage that could occur from mandatory vaccination, for example
if workers need to take time off if they experience vaccine side effects.
It should also ensure that any system for evidencing vaccination status
is free to use, accessible, and available in digital and paper formats.

The Public Sector Equality Duty (PSED) applies to public authorities who employ and fund
care home workers (such as Government departments, local authorities and NHS bodies)
and those who exercise public functions (for example work that is publicly funded but carried
out by private sector contractors on the state’s behalf). As such organisations have to
assess the potential impact of implementing the requirement to be vaccinated on people with
protected characteristics, it is vital they consider what steps it could take to mitigate any
adverse impacts. The UK Government must ensure it complies with the PSED by taking
steps to identify and address any negative impact on people sharing different protected
characteristics. For example, having a digital-only approach to evidencing vaccination may
indirectly discriminate against some disabled or older people who don’t have or are unable
to use digital technology.

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

14. Finally, a new requirement should be time limited and subject to

transparent review based on new evidence as it emerges.

Section 60 of the Equality Act 2010

15. Employers must not discriminate, either directly or indirectly, because

of a protected characteristic when recruiting employees. Under section
60 of the Equality Act, it is unlawful for an employer to ask a job
applicant health-related questions before making a job offer, unless one
of a limited number of exceptions applies.
16. We note that the proposals set out in this consultation would introduce
a new legal requirement for coronavirus vaccination in care homes by
amending the Health and Social Care Act. Proposals do not refer to
how this requirement will interact with section 60 of the Equality Act.
The Government should provide guidance to care home providers
clarifying how they can check vaccination status in a way which
complies with section 60 and make it clear that in the majority of cases,
wider health-related questions remain unlawful.

Employers also have a duty under the Equality Act to make reasonable adjustments, such
as changing a policy or the way something is done, so that as far as reasonably practicable
disabled people can remain and progress in employment as easily as non-disabled people.
This means taking steps to ensure disabled workers who are unable to be vaccinated are
not disadvantaged or place at risk of losing their job or contracting coronavirus, for example
by offering redeployment away from front-line roles, and by ensuring that any alternative role
is suitable, at an equivalent grade and rate of pay, and is agreed with the individual rather
than imposed.

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

17. Adverts are also part of the recruitment process. There is a risk that
advertising the requirement to be vaccinated in order to perform roles
within care homes may deter candidates who are unable to have the
vaccine for medical reasons, and so result in indirectly discriminating
against such candidates where the reason is related to a protected
characteristic such as disability. Therefore, guidance should also make
clear that care home providers should clearly state in job adverts that
those who are exempt from the requirement for vaccination are still able
to apply for roles, as alternative arrangements can be made.

Side effects and Statutory Sick Pay

Levels of Statutory Sick Pay (SSP) and lack of access to SSP may be deterring
workers from being vaccinated because they cannot afford to take sick leave if
they have side effects.8
18. Skills for Care data estimates that nearly a quarter of the workforce in
adult social care are on zero hours contracts 9, meaning they may not
have rights to SSP, and there have been concerns throughout the
pandemic that workers with coronavirus symptoms felt unable to isolate
due to financial pressures. The Government should ensure that
workers, including those on zero hours contracts, have access to paid
time off at their usual rate of pay to receive and, where necessary,
recover from the vaccine.

Public Health England (2021) What to expect after your COVID-19 vaccination:Information for
people who just had their COVID-19 vaccination

The state of the adult social care sector and workforce in England (October 2020) Skills for Care

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

Vaccine hesitancy

19. There are very few people who are genuinely unable to be vaccinated,
but there are certain groups who have concerns about vaccination.
Recent data from the Office of National Statistics shows that vaccine
hesitancy is five times higher among Black or Black British adults
compared with White adults, and those who don’t speak English at all
or well have lower vaccination rates among those aged 50 years and
over10. Adults living in the most deprived areas are also more likely to
report vaccine hesitancy11. Concerns have been compounded by the
rapid spread of misinformation on social media. These concerns need
to be addressed sensitively, and we welcome acknowledgement of this
in the consultation document and existing efforts to engage with
communities.
21. Some of these groups have also been hit hardest by the pandemic, and
are disproportionately represented in the adult social care sector workforce.
The sector includes a large percentage of ethnic minority (21%) 12 and
female (82%) workers,1314 and a high proportion of low-paid and precarious
workers, as well as low retention rates (estimated 30.8% turnover in
2018/19) and staffing shortages (estimated 122,000 FTE vacancies in
2020).15 Mandatory vaccination could risk further excluding these groups
from access to employment.16

10

Coronavirus (COVID-19) latest insights (May 2021) Office for National Statistics

11

Coronavirus (COVID-19) latest insights (May 2021) Office for National Statistics

12

Skills for Care (2019) The state of the adult social care sector and workforce in England

13

Women and Equalities Select Committee (2020) Unequal impact? Coronavirus and BAME
people

14

Women and Equalities Select Committee (2021) Unequal impact? Coronavirus and the
gendered economic impact

15

Skills for Care (2019) The state of the adult social care sector and workforce in England

16

ONS (March 2021) Coronavirus and vaccine hesitancy

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Our response to the consultation on making vaccination a condition of deployment in older adult
care homes

Monitoring and review of requirements

20. Finally, we acknowledge the effort Government has made throughout
the pandemic to assess emerging evidence and act to protect public
health and safety. While the vaccine is a welcome step in protecting
workers and care home users, new evidence is continuously emerging
on how successful vaccination is in preventing virus transmission.

21. In light of this, we recommend that any and all measures for mandatory
vaccination are subject to strict parliamentary scrutiny to properly
consider the impact on the care sector workforce in terms of access to
employment, and workers’ ability to continue working and receive
adequate levels of pay.

22. We suggest too that before determining whether to make this a

permanent requirement, Government considers including a sunset
clause in the legislation, and commits to regular review to ensure that
mandatory vaccination is a proportionate approach, until further data is
available on the efficacy and impact of the requirement in the long term.