Mandatory Covid vaccines for NHS staff: how should HR respond?

Experts warn that employers outside the health and care sectors must tread carefully before rolling out a compulsory jab policy

Covid-19 vaccinations will become compulsory for frontline NHS workers in England, the health secretary has confirmed. However, legal experts have cautioned against employers in other sectors following suit.

Speaking at the House of Commons yesterday (9 November) Sajid Javid told MPs that he expected all unvaccinated NHS workers to get both jabs by the beginning of April next year.

While 93 per cent of NHS frontline staff have already had their first dose, and 90 per cent are fully vaccinated, the government has estimated this leaves more than 70,000 unvaccinated NHS staff who need to be vaccinated or risk losing their jobs when the grace period ends on 1 April 2022.

The government has said exemptions will be given to those who do not have face-to-face contact with patients, as well as those who are medically exempt.

Javid also told MPs that no unvaccinated NHS workers should be “scapegoated, singled out or shamed” by their employer or colleagues, adding that these behaviours would be “totally unacceptable”.

However, as well as concerns that a vaccine mandate could cause some workers to leave their jobs, exacerbating existing healthcare staffing issues, there have also been concerns that enforcing such policies could create legal risk for employers both in the NHS and elsewhere.

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Julian Cox, employment law specialist and partner at BLM cautioned that the mandate could expose the NHS to legal claims ranging from unfair dismissal to discrimination based on disability, maternity, religion or beliefs.

It would be “vital for HR bodies within the NHS to follow proper procedure as they implement mandatory vaccine policies, not only to protect staff and patients, but to keep the NHS safe from potential legal fallout in the months to come,” he said.

The announcement follows similar legislation in the care sector, where mandatory vaccines came into effect in October. At the time, legal experts told People Management the mandate was a “bold move”, cautioning employers outside the sector to be careful if they wanted to implement a similar requirement.

Joanne Moseley, a senior associate in the employment team at Irwin Mitchell, said she didn’t envisage compulsory vaccinations extending to other sectors. “Businesses will only be able to make vaccination a condition of employment if they are under a legal duty, such as in the care sector, or they can demonstrate that asking staff to take the vaccine is a reasonable management instruction,” she said.

Moseley added there was disagreement among employment lawyers about whether it was reasonable to ask about an employee’s vaccination status, or to take action against employees who refuse a vaccine. But, she said, health and safety was still the employer’s responsibility. “The onus is on the employer to take steps to minimise the risk of catching and transmitting the virus by making changes to the way in which they operate,” she said.

Alan Lewis, partner at Constantine Law, said businesses that are not required to introduce a compulsory vaccination policy but decide to do so anyway will face risks.

“The blanket introduction of mandatory vaccination policies which are applied inflexibly is likely to be unlawful because vaccination is not suitable for everyone and there are discrimination risks,” Lewis explained, adding that the vaccine was not suitable for everyone, and that making it mandatory could indirectly discriminate against employees with certain protected characteristics.

However, Ann Frances Cooney, employment partner at DWF, said that once the mandatory vaccination rules come into force, decisions concerning employment of non-vaccinated staff in the NHS at least were likely to become more straightforward.

But she warned: “Taking disciplinary action or even dismissing an employee for failing to be vaccinated is not without risk, especially for employers outside of the health and social care sectors.

"Vaccination on this scale is an entirely new and sensitive issue. We have yet to see how courts and tribunals will deal with unfair dismissal and discrimination cases in this context and are unlikely to do so for many months,” said Cooney.

She cautioned employers to “tread very carefully before disciplining or dismissing an employee for refusing to be vaccinated”.

Alexandra Carn, employment partner at Keystone Law, said while there are many reasons why an employee could refuse the vaccine, it “remains to be seen” whether claims under the Equality Act will arise from the compulsory vaccine stance.

“Acas recommends that employees should be encouraged and supported to get vaccinated, but that it should not be a requirement. This is an area where engagement and consultation with employees is vital,” said Carn.