Legal

How to manage mandatory Covid jabs for healthcare workers

11 Nov 2021 By Alastair Currie

The introduction of compulsory vaccination for staff has raised significant HR and legal issues for NHS and independent healthcare employers, says Alastair Currie

Although it appears that 65 per cent of respondents to the government’s consultation did not want a mandatory vaccine, and influential organisations such as the Royal College of Nursing have questioned the efficacy of this approach, the government clearly felt there was a compelling health and safety driven reason to introduce it. 

This follows the government’s approach in social care, where mandatory vaccination was brought in despite 57 per cent of respondents to the consultation being opposed to it.

Impact on staffing levels

Since the announcement of mandatory vaccination for social care workers, which comes into force today (11 November), we’ve seen some staff leaving the sector, creating additional resourcing pressures, and there is a very real risk that the same could happen in the health sector. 

This is concerning as we approach the winter, which is always a challenging time for the NHS, particularly this year, with Covid cases increasing again. It is heartening to see that the government has taken account of this in delaying the implementation of this move until the spring. 

This should allow more time for healthcare employers to continue to engage and encourage staff take-up of the vaccination before the deadline and reduce the risk of workers feeling resentment and anger and leaving healthcare.

Compulsory vaccination raises significant HR and legal issues, and we’ve been working closely with social care employers and the Independent Healthcare Providers Network (IHPN). Issues include redeployment of staff, dealing fairly with those who cannot receive the vaccination for health reasons and managing situations where staff members refuse the vaccination on non-medical grounds. 

Legal challenges

In social care we have already seen staff, supported by unions, bringing discrimination-based claims, as well as challenging the legitimacy of the legislation and human rights implications. It is likely that these issues will be magnified in the health sector due to the strength of the unions.

How should employers approach this?

Despite the challenges, the continuing integration of social care and healthcare provision means that different treatment of social care and healthcare staff, or NHS and independent sector staff, is artificial and hard to justify. There are already many healthcare professionals delivering services in social care settings where compulsory vaccination applies. From a whole system perspective, this could be considered another step towards breaking down artificial barriers.

NHS and independent health employers should start getting ready for mandatory vaccination now. Many of our healthcare clients have already been taking a more assertive approach towards managing take-up and communication with staff and particularly new starters. The emphasis for managers, at this stage, should continue to be on open and sensitive discussions with staff who do not want to have the vaccine to ascertain their reasons and try to alleviate any concerns.

Alastair Currie is an employment partner at Bevan Brittan, with responsibility for the firm’s NHS employment practice.

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