UK ‘shifts direction’ on vaccine requirements, but workplace safety duties remain

Out-Law News | 01 Feb 2022 | 4:43 pm | 3 min. read

Employers should approach any reversal of workplace Covid mitigation measures and HR policies cautiously despite the change in tone from the UK government, health and safety and equality law experts have warned.

The government intends to consult on ending previously-announced policies requiring vaccination against Covid-19 as a condition of deployment in health and social care settings in England, health secretary Sajid Javid has announced. It comes amid a loosening of some of the requirements around home working, self-isolation and the wearing of face coverings in some parts of the UK, with the prime minister having previously suggested that self-isolation regulations applicable to England may not be renewed when they expire on 24 March.

People in England are no longer legally required to wear masks in most public spaces although many supermarkets and major retailers, along with Transport for London, are continuing to ask staff and customers to do so. Masks remain a legal requirement on public transport and in most indoor public spaces in Scotland, Wales and Northern Ireland.

Health and safety law expert Katherine Metcalfe of Pinsent Masons said that employers “face a challenging balancing act” as different governments roll back Covid-specific laws and guidance.

“Employers have a duty to keep their risk assessments under review as the picture changes,” she said. “They must take account of the risks to their own employees and the employees of other organisations with which they work, and to the general public using their services.”

“To reduce Covid mitigation measures in their workplace, employers will need to be satisfied that either the risks have reduced, the mitigation measures are no longer reasonably practicable, or both. Changes in government guidance can help to justify these judgements, but they must be applied to the specific workplace. It is important to document this balancing process,” she said.

Dodd Kate

Kate Dodd

Legal Director

Employers should fully assess the impact of any planned policy changes before taking any action – taking into account the equality impact, as well as health and safety

The government announced in November that all frontline health and social care workers in England, including volunteers, would have to be fully vaccinated against Covid-19 with effect from 1 April 2022. Those yet to be vaccinated would need to have first dose this week to allow sufficient time to receive both doses.

A similar requirement came into force for care home workers in England on 11 November 2021.

In a statement last night, the government appeared to U-turn on this, saying that with the emergence of the less severe Omicron variant of Covid-19, “the balance of opportunities and risks” associated with mandatory vaccination had changed. High voluntary vaccination rates and lower levels of hospitalisation and mortality “suggest the population as a whole is now better protected” against the virus, while staff shortages remain in both health and social care settings.

Although the government appears minded to withdraw the vaccine mandate, stating that it is “no longer proportionate”, it is entering into a period of consultation regarding the proposal before doing so. Javid also stressed that those working in health and social care had a “professional duty” to be vaccinated. The government would also work with professional regulators, Royal Colleges and the Care Quality Commission to strengthen their guidance on vaccinations to health and social care providers, as well as infection and control guidance.

Javid has also asked NHS England to review its policies on the hiring of new staff and deployment of existing staff, taking their vaccination status into account.

“Should we see another dramatic change in the virus, it would be responsible to review this policy again,” he said.

Equality law expert Kate Dodd said that the latest announcements showed “a clear shift in direction from the government”, albeit one still subject to consultation and approval by parliament. She said that employers in all business sectors could find themselves under pressure to review their polices in line with the anticipated announcements, but urged caution before doing so.

“The potential removal of the need to isolate from March, and the drop in numbers of those wearing masks and testing themselves regularly, may be welcome news for many, but employers have a duty to take into account the needs of the entire workforce, including those who are clinically extremely vulnerable, or who are at higher risk due to pregnancy,” she said.

“Many employers are bringing their employees back into the workplace in increasing numbers, with the average mandate being that those who have been working from home should return to the office between three and five days per week. This is already causing concern to many, and we are seeing an increase in flexible working requests, and related grievances.”

“When combined with a reduction in the measures that were intended to keep people safe - both within the workplace and on public transport - we are predicting a sharp increase in these types of issues, with potential claims from employees that their health, safety, and mental wellbeing is not being protected. Employers should therefore fully assess the impact of any planned policy changes before taking any action – taking into account the equality impact, as well as health and safety,” she said.