Grievances and claims loom with NHS mandatory vaccines policy

As you will have seen in the news, from April it will be compulsory for frontline NHS staff in England to be fully vaccinated against Covid-19. The consensus in employment and legal circles is the new law will be tricky to implement and could expose the NHS to grievances and a range of legal claims. More on that shortly. 

The government’s decision follows a lengthy consultation which considered whether both the Covid and flu jabs should be compulsory - the outcome is that a Covid jab will be mandatory but a flu jab will not be. The decision follows rules now governing the care sector, where mandatory Covid vaccination is already a legal requirement.

The announcement about mandatory vaccinations in the NHS was made to the House of Commons by the Health Secretary Sajid Javid on 9 November. This is what he said:

Video – parliament.live

The Health Secretary went on to explain how the mandatory requirement would be enforced 12 weeks after parliamentary approval - likely to be from 1 April. He made a point of saying that that no unvaccinated worker should be "scapegoated or shamed" and should instead be supported to make "a positive choice". 

Not surprisingly this has been widely covered in the press, including the HR press. People Management’s article warns employers outside the health and care sectors to tread carefully before rolling out a compulsory vaccination policy, and we agree with that. They also cite a number of employment lawyers who are in agreement saying the policy will leave the NHS facing grievances and legal claims from unhappy unvaccinated employees of which there will be tens of thousands. So, let’s consider that now. Anne Sammon joined me by video-link to discuss the issues. I started by asking Anne about those grievances and claims:

Anne Sammon: “I suppose some of the grievances and claims that we might see might be misjudged in that way in terms of employees are obviously, or some employees, will be unhappy about the forcing of them to be vaccinated. So some may try and rally against that. What others may do is kind of bring grievances or claims around, well, okay, so I can't do this particular job but surely there are other roles within the organisation that I might be able to do that don't require vaccination and have you, as an employer, looked at those alternatives? What other things could I be doing that don't require vaccination status under the law as it is at the time?”

Joe Glavina: “This is clearly going to be very tricky to manage, come April. What’s your advice to HR when it comes to implementing a mandatory vaccination policy like this?”

Anne Sammon: “It's really difficult for employers to navigate. I suppose the advantage from an employer perspective is that if you're within one of those sectors where vaccination has been mandated then you've got the law to fall back on. I think what we're starting to see as a result of the mandatory vaccinations in the care sector which took effect last week, and the upcoming vaccination mandate in the NHS which is likely to take effect in April, is that other employers are starting to look at whether or not mandatory vaccination is the right thing to do for their business and that’s far more difficult outside of those particular sectors where it's being mandated by government and that's where there are significant risks of implementing that kind of policy because you don't have that legislation to fall back on and say, well, it's not our choice that you have to be vaccinated, that is a government decision.”

Joe Glavina: “One of the lawyers in the People Management article says there is some disagreement among employment lawyers about whether it is reasonable to ask employees about their vaccination status but, at the same time, there is a duty to protect against transmission of the virus. Again, tricky.”

Anne Sammon: “I think it's a balancing act and it’s all about what your justification is for asking employees about vaccination status. So if you are in a normal kind of office environment, not dealing with the public, not coming into contact with people who are extremely clinically vulnerable, then the employer is going to have to show why it is that they think it's necessary to ask that information and it's the same sorts of issues that you'd be looking at if you were implementing a mandatory vaccination policy. So, what is it that you're saying that having vaccination will help with in terms of a health and safety angle, and any other angle that you go down? I suppose one of the tricky things for employers is that a lot of this is about the scientific evidence that is out there which is kind of evolving and changing on almost a daily basis. So one of the arguments we've seen some employers want to run is to say, well, actually, there's evidence that that vaccination stops transmission and if vaccination stops transmission, from a health and safety perspective, one of the things that we're trying to do within our working environment is minimise transmission so, therefore, if we know that people have been vaccinated that helps with some of the other measures that we can maybe reduce or take additional steps where people haven't been vaccinated to make sure that we are doing everything we can to minimise transmission within the workplace.”

Joe Glavina: “The Health Secretary has said that no unvaccinated worker should be "scapegoated or shamed", and should instead be supported to make "a positive choice". That’s easy to say but, on the ground, very difficult to manage, I would have thought”

Anne Sammon: “I think it's incredibly difficult because I think by this point people have made their decisions. We are not at the outset of vaccination, these aren't people who are undecided about whether to be vaccinated or not, many of them will have very strong views about vaccination and therefore a manager sitting down and saying, oh, I really think you should be vaccinated, is unlikely to have the kind of positive impact that the Health Secretary is maybe suggesting it might. It also puts the manager in quite a difficult position because you can see that where somebody does have those very strong views, anything that you say to them to try and persuade them, could potentially be seen by them as being harassment and therefore it's a very difficult line for managers to tread around this issue. Where the government's mandated vaccination it’s quite difficult to see how employers will have any option other than terminating employment if there aren't other roles that might be available. for that individual.”

Joe Glavina: “Yes, can I ask you about those other roles. Is there a duty here to look at redeployment?”

Anne Sammon: “So I think any employer that's looking at issues of termination it's always a good idea to look and see if there are other roles that somebody could be moved into where it's this type of issue where we're saying that the reason that somebody can't fill their role is for a specific reason that might not apply to other roles. I think the challenge, both for the care sector in terms of the deadline from last week and also the NHS in terms of the deadline in April, is that the mandatory vaccination piece applies quite widely and, therefore, if we're saying all frontline NHS workers have to be vaccinated then we're looking at moving some of those vital frontline staff out to other services, and even that is going to have an adverse impact on the NHS’s ability to deal with any upcoming emergencies that we might have in the healthcare sector. So, it’s really challenging and the thing that we've seen within the care sector is there just aren't lots of open jobs where vaccination isn't required and, therefore, I think whilst employers should look and see whether there are alternatives, whether we will actually see that, come April, is an unknown at this point.”

The mandatory vaccination policy for the NHS is expected to be in force with effect from 1 April next year. As far as the care sector is concerned, the rules are already in force. So, people working in care homes in England must be fully vaccinated against Covid-19 unless they have a medical exemption. Has covered this in some detail in her article ‘Compulsory vaccination for care home workers in England’. That is available now for viewing from the Outlaw website.