The Law Society of England and Wales (Law Society) has called for “detailed guidance” from the government on its covid-status certification plans to avoid the scheme’s objectives being unfulfilled and/or the courts being placed under greater strain by people litigating to seek clarity. 

Covid-status certification involves the use of vaccination or testing data ‘to confirm in different settings that individuals have a lower risk of getting sick with or transmitting covid-19 to others.’

The government is considering whether covid-status certification could play a role in reopening the economy, reducing restrictions on social contact, and improving safety. The certification would be available to vaccinated individuals and unvaccinated individuals who have been tested.

The government ran a consultation between 15 March and 29 March 2021. The Law Society has published its response to the government’s proposals, with a focus on the impact it will have on members’ workplaces and working practices.

Law Society president, I. Stephanie Boyce, said: “The more detailed the government guidance on how to use the proposed scheme, the more clarity employers and employees will have.”

She added, “If the guidance is not comprehensive, there is a risk the objectives of the scheme will not be fulfilled and/or that further strain will be placed on the courts and tribunal system as people seek clarity through litigation. This would not be a good use of an already heavily burdened justice system.”

The Law Society has urged the government to carefully consider factors such as existing guidance, arrangements in legal settings such as courts, discrimination and data protection. 

It queried what implications the proposed scheme may have on existing covid-secure guidance, such as social distancing and workplace testing, and asked how the government will ensure that no one is unduly disadvantaged because of not having had access to the vaccine. 

The Law Society also highlighted that firms need clarity on the arrangements in place for settings in which solicitors often work, such as courts, police stations and prisons, and queried what certification may be required to attend such settings.

It has urged the government to carefully consider ‘the potential impacts on people sharing different protected characteristics and how those impacts could be mitigated’. The government will need to consider the risk of discrimination on grounds such as age, race, disability, pregnancy and religious belief.

Helen Littlewood, a senior associate from Centrefield LLP, commented “If a worker’s reason for not wanting the vaccine, or potentially the certification, relates to a protected characteristic under the Equality Act 2010, then subjecting that worker to a detriment for not agreeing to have the vaccine or potentially obtaining the certification could amount to a discriminatory act which, in turn, could give rise to an employment tribunal claim.”

The technology and data processing mechanisms used by the government and employers for the purposes of covid-status certification would require high levels of security. The Law Society said: ‘The public will want to be confident that the data will only be used for very specific and limited purposes.’ Littlewood also highlighted the importance of data processing mechamisms being compliant with data protection laws.    

The government is assessing to what extent certification would be effective in reducing risk, and its potential uses in enabling access to settings or relaxing covid-secure mitigations. It is analysing the responses to the consultation and has said it hopes to provide further details on how the scheme will work before step four of the roadmap to recovery is implemented. 

Boyce commented: “We hope that there will be opportunity to provide views on the scheme once the government decides how it wishes to proceed.”

The government’s consultation can be reviewed here and the Law Society’s response is available here.

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