Leaders at Chelsea and Westminster Hospital Foundation Trust have been discussing making covid-19 vaccination a contractual requirement for all staff, in a leaked email published by the Independent newspaper.
The email, signed by the trust’s chief executive, Lesley Watts, was sent to NHS chiefs in the North West London region and included a draft letter for staff, which other trusts were encouraged to adapt and use, stating: “We will be making Covid vaccination mandatory for all our employees and it will from part of the employment contract. This will join Flu, Hep B and other vaccinations which we ask staff to take up.”
The trust did not say why the letter had been written but released a statement saying, “There is no intention to mandate vaccination of our staff, and no such communication has been sent to our staff.”
Would it be legal to mandate vaccination?
Isra Black, a law lecturer at the University of York specialising in healthcare law, told The BMJ, “Any public authority, whether the state or individual NHS trusts, that mandates vaccination will need to comply with human rights and equality law. Mandatory vaccination interferes with the right to private life protected by article 8 of the European Convention on Human Rights, so the relevant authorities will need to show that the interference is justified in its pursuit of a legitimate aim and its proportionality.
“Public bodies must also show that they have taken into account the public sector equality duty and that mandatory vaccination policies comply with the requirements of the Equality Act 2010.”
Everyone working in care homes to be fully vaccinated under new law to protect residents
Care home residents will be better protected from death and serious illness, following confirmation people working in care homes will need to be fully vaccinated against COVID-19.
The Department of Health and Social Care (DHSC) conducted a public consultation regarding an amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The amendment which we consulted on would require older adult care home providers to deploy only those workers who have received their COVID-19 vaccination in line with government guidance (unless medically exempt). We consulted on the amendment from 14 April to 26 May 2021 and the full consultation document is available online.
This is the formal government response to that consultation.
The new legislation means from October – subject to Parliamentary approval and a subsequent 16-week grace period – anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have 2 doses of a COVID-19 vaccine unless they have a medical exemption.
It will apply to all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home.
Those coming into care homes to do other work, for example healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new regulations, unless they have a medical exemption.
The responses to the consultation made a case for extending this policy beyond care homes to other settings where people vulnerable to COVID-19 receive care, such as domiciliary care and wider healthcare settings.
Based on this evidence, the government will launch a further public consultation in due course on whether or not to make COVID-19 and flu vaccination a condition of deployment in health and care settings. This is a complex issue and the government is looking for a wide range of perspectives from across the health and care sector about whether this should be introduced and how it could be implemented
There is limited data to determine the number of workers who would qualify for exemption in line with ministerial decisions on exemption eligibility, and this uncertainty extends to the number of workers who may need to be replaced. Though unknown, we expect there to be very small numbers of staff who will have medical reasons not to be vaccinated and therefore will be exempt. Only a small proportion of staff will have relevant allergies to a specific vaccine ingredient, for example, as these are very rare in the overall population. Similarly, only small proportion of pregnant staff are likely to experience the kind of complications which would mean that vaccination is not advised, and exemption is to be determined on a clinical, case-by-case basis. Taking these factors together, we have arrived at an estimate that 1% of the overall workforce may be exempt. This estimate is supported by a Driving Uptake Project survey (also detailed below), and though that survey sample is not representative of all care homes, we would expect the share falling within this category to be broadly consistent across all homes.
Applying this figure to our projection above, we estimate that at most 12% of the workforce might no longer be deployable as a result of the policy.
Could individual trusts make the covid jab mandatory?
In theory, individual trusts could add mandatory covid-19 vaccination to their staff terms and conditions. But Anthony Harnden, deputy chair of the Joint Committee on Vaccination and Immunisation, said that it would be hard to enforce vaccinations among staff already on contract. “It would be very difficult from an employment perspective to make vaccine compulsory to those already employed without a change of legislation,” he recently told an audience at the Royal Society of Medicine.
A BMA spokesperson also said that any introduction of local NHS policies requiring doctors to have been vaccinated against covid to work in certain settings would need local engagement with staff and representatives. The spokesperson explained, “While some healthcare workers are already required to be immunised against certain conditions to work in certain areas, any specific proposal for the compulsory requirement for all staff to be vaccinated against covid-19 would raise new ethical and legal implications.
“For instance, existing requirements are based on the principle of preventing an infection being passed on by the healthcare worker to patients and colleagues, rather than protecting the individual themselves.”
What if an employee refused a request?
If an employee refused consent for a vaccination, the employer would need to decide whether it was reasonable in the circumstances to take disciplinary action. This would depend on the reasons given for the refusal and the employer’s justification for requiring vaccination in the first place.
A further potential for discord would be employees refusing to work with non-vaccinated colleagues if they themselves are unable to be vaccinated. Employers would need to bear in mind the competing interests of employees and consider whether alternatives, such as changing either or both employees’ duties or work stations could resolve any disputes.
What does the government say about Mandatory Vaccines?
Written and printed for public use in a briefing regarding Vaccines has stated:
Vaccines offered through the national immunisation programme in the UK are not mandatory. Vaccinations are also not currently mandatory in the UK during a pandemic.
Medical and ethical opinion is divided on the introduction of immunisation policies that involve some degree of coercion (such as fines). Some countries, such as Italy and France, have mandatory vaccination policies in place, an overview of which is provided on pages 43-48. In response to falling vaccination rates, some countries, including Italy, have extended existing mandatory vaccination programmes, or introduced them for the first time, such as in Germany. Certain policies criminalise vaccine refusal, such as by fining parents, or make access to services – such as state-run schools – contingent on immunisation status.
The UK does not make any vaccination offered through the national immunisation programme mandatory. NHS guidance notes that you should be “asked for your consent before each vaccination.”
In September 2019, at the Conservative Party Conference, Health Secretary Matt Hancock reportedly said he was “looking very seriously”at making vaccinations mandatory for all children going to school in England:
The former Chief Medical Officer for England, Dame Sally Davies, has also commented on mandatory vaccination. Speaking on BBC Radio 4’s The Today Programme in October 2019 about childhood vaccinations,
Dame Sally said: “We need to up our vaccination rates. I hope we can do it by other means, but if we can’t, we might well end up with mandatory.”
A spokesperson for the Prime Minister, however, said there were no plans to make childhood vaccinations compulsory for those attending state schools, adding: “we’re not at the stage of refusing admission. Our priority is on increasing vaccination numbers.”
Download the PDF and take a read
The UK government has confirmed that it will NOT embark on mandatory vaccination for UK residents; however, it may be different for those who work on the care home sector as care workers, which leaves open the question of whether employers could require staff to be vaccinated as a condition of attending work. The legality of this approach, and the fairness of taking disciplinary action in the event of non-compliance, like many things in employment law, is a question of what is reasonable.
Please make sure you have read through the full briefing report on Vaccines above and the consultation documents below.
Health and Social Care Act 2008 (Amendments)
Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
Consultation and Results regarding Care workers being Vaccinated