On 20 November 2020, NHS England wrote to all NHS trusts with a clear instruction to implement a plan to vaccinate their workforce.
This article considers the high-level risks of implementing such a policy in light of reported statistics that a significant proportion of people would refuse the vaccination.
In summary, before implementing a vaccination plan, we would recommend:
- consulting with any recognised trade unions;
- equality impact assessing the approach; and
- considering what approach will be taken to those who refuse the vaccine on moral, religious or health grounds.
Perspectives
Pursuant to section 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014/2936, care and treatment must be provided in a safe way for service users. This includes 'assessing the risk of, and preventing, detecting and controlling the spread of, infections, including those that are health care associated' (section 12(h)).
- From an employer's perspective, healthcare workers shielding, taking sick leave or in quarantine due to COVID-19 is disruptive and costly to the NHS, so healthcare workers have a professional responsibility to be vaccinated.
- From a patient safety perspective, healthcare workers could spread COVID-19 to vulnerable and immunosuppressed patients at high risk of complications and death, so healthcare workers have a professional responsibility to be vaccinated.
- From an occupational health perspective, the rationale behind mandating the vaccination could be to protect healthcare professions as they are at increased personal risk due to contact with sick patients, and therefore should be offered the vaccination. An alternative option is to offer vaccination to all healthcare workers who may opt in or out.
The vaccination could be framed as a professional responsibility and target high vaccination coverage in line with relevant government guidance.
Potential areas of legal challenge
There are three areas of potential legal risk:
- Contractual risk – imposed requirement without agreement with recognised trade unions
- Human rights challenge
- Risk of personal injury claims
These risks are considered separately below.
1. Contractual risk and collective bargaining
If an employer intends to make vaccination mandatory, this will amount to a change in terms and conditions. An employer is likely to encounter significant resistance - many employees will object, either due to their concerns about the safety of the new vaccine (whether well-founded or not), or due to an opposition to being compelled by their employer to undertake what is effectively a minor medical procedure.
Employers must usually inform and consult with a recognised trade union about major changes in the workplace and changes to employees' terms and conditions regarding pay, hours of work and holidays.
Without agreement the employer would be faced with either unilateral imposition of the change, or terminating and offering re-engagement on the new terms. Both options carry significant legal risks.
2. Human rights
Under the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a convention right. A 'public authority' includes anybody 'whose functions are functions of a public nature'. An NHS trust, for example, falls under the definition of a public authority and must not act in a way which is incompatible with a convention right.
Article 8:
It may be argued that imposing a mandatory requirement for COVID-19 vaccinations would be a contravention of Article 8 as it states that a public authority cannot interfere with a person's right to private and family life. It includes protection for physical and psychological integrity which incorporates compulsory medical treatment.
Article 8 is a qualified right, which means that a public authority may interfere with this right if it is 'in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
A NHS or other health employer could therefore argue that the introduction of the COVID-19 vaccination is in the public interest and for the protection of the health of the patients being treated at the hospital.
Article 9:
Employees or those representing them may also argue that the mandatory COVID-19 vaccination would be contrary to Article 9, the freedom of thought, conscience and religion. In the context of medical treatment, a person has the right to choose if they want to undergo treatment, even where refusal to accept a particular treatment might have a fatal outcome.
In order to avoid or defend a claim that the employer is acting contrary to Article 9, it is necessary to ensure that there is an exemption on religious grounds and other reasonable grounds, for example if the employee has a known allergy.
Legal action
Personal injury claim
There is a risk of a claim for personal injury if a vaccination causes adverse effects, especially if the vaccination is mandatory. However, if the vaccination is to be administered by a separate provider e.g. a third party supplier, then it is unlikely that an employee could successfully bring a personal injury claim against the trust. This is because the COVID-19 vaccination would not have been carried out or manufactured by the trust.
The implementation of a mandatory COVID-19 vaccination may increase the risk of employees attempting to bring personal injury claims against the employer. However, without evidence of clear negligence and that it was foreseeable that the vaccination would cause harm, it is difficult to obtain compensation through traditional legal mechanisms. It would be particularly difficult for a claim to succeed/for a claim to be successful if the vaccination was not given by the employer.
The risk of a successful personal injury claim is relatively low as long as the exemption is put in place for those employees who may have medical reasons for not having the vaccination and it is followed for any new employee. Any refusals for an exemption must be wholly justified and documented.
Industrial action
A trade union can only call for industrial action if a majority of its members involved support it in a properly organised ballot.
A trade dispute need not be restricted to matters affecting all (or any) of the workers taking part in the industrial action. It may concern the 'terms and conditions of employment, or the physical conditions in which any workers are required to work' not just the terms and conditions or physical conditions of the workers taking part.
Judicial review
A judicial review is an available remedy for individuals seeking to challenge a decision of a public body and it is relevant to public sector employers such as the NHS. A judicial review can seek for such a decision to be overturned, or for the public body to be ordered to reconsider the decision. Furthermore, the application for judicial review could also request an injunction to prevent the employer implementing the vaccination policy while the legal action is underway.
There is a risk, therefore, that a public sector employer implementing a mandatory policy which has potential to affect an employee's employment with the trust can be subject to judicial review.
There are potentially three likely grounds that someone affected may bring a judicial review claim:
- that the decision taken is in breach of the Human Rights Act (see above);
- that the decision to implement a mandatory requirement to vaccinate has not been implemented correctly (for example, without reasonable consultation); and
- that the decision to have a mandatory COVID-19 vaccination policy is irrational.
The test under the Human Rights Act is proportionality. In order to act proportionately, a public body must undertake a balancing exercise between legitimate aims of the state on the one hand and the protection of individual rights and interests on the other.
An NHS employer can argue that the legitimate aim is the protection of the health and safety of vulnerable patients, who are likely to face debilitating and potentially life-threatening consequences of COVID-19 infection. It could also argue that the mandatory COVID-19 vaccination requirement is proportionate as it is only imposed on new starters and there is an exemption for those with medical or other reasons for not having the vaccination.
Impact assessment
A thorough impact assessment supports the defending of a judicial review on any equality grounds. It should consider the issues highlighted in this report such as the risk of personal injury, the impact the policy may have on people with disabilities or certain religious beliefs.
The impact assessment should highlight the steps that the public sector employer has taken to address such issues (such as the exemption for good medical or other reasons).
If a decision is made to implement a mandatory requirement, to what extent can employers require their employee to have vaccine?
Employers have no statutory right to require employees to be vaccinated.
Healthcare employers may consider either imposing a contractual clause to require employees to be vaccinated or state that it is a reasonable order of management to have the vaccination.
Key risks to consider with either approach are:
Disability discrimination - any available vaccine may not be suitable for all workers. For example, some of the vaccines are not suitable for certain individuals with suppressed immune systems. Likewise, some people with allergies may not be able to be vaccinated safely.
Religious discrimination – some workers may have religious or moral objections to the vaccine and these may amount to protected religious or philosophical beliefs.
It may be possible to justify such potential discriminatory impacts, but this is untested. A safer approach may be to consider individual workers' specific circumstances that prevent them from getting the vaccination.
Furthermore, given the human rights considerations set out above, there would be risks with disciplining any worker who refused the vaccination on moral, religious or medical grounds.
Global examples of vaccination requirement
Finland
Finland have implemented legislation which requires employers in social and healthcare organisations to (a) define areas where vulnerable patients are cared for and (b) ensure that staff working in these areas are immune from measles, varicella, pertussis and flu.
It is not mandatory for all health professionals and the law allows for some exceptions where individuals have medical reasons for not being vaccinated; where an institution urgently needs staff and cannot find a vaccinated person with the required qualifications; or where services would be compromised if the rule was strictly applied.
US
In the US, a discrimination case was brought against Mission Hospital in North Carolina by Christian and Muslim workers after they were dismissed for refusing to have a flu vaccination because it violated their religious beliefs.
The hospital argued that it required employees to have the flu shot by 1 December and for any exemptions (including for religious beliefs) to be filed by 1 September. The three former employees did not file an exemption and were subsequently dismissed. The employees claimed that they had been discriminated against based on their religious views.
The case was settled and the settlement allowed the hospital to keep a strong flu vaccination policy. In addition to providing the payment to be split by the employees, the hospital entered into a two-year consent decree which requires it to, among other things, revise its immunisation policy to make it easier for workers to request a flu vaccination exemption.
A similar legal challenge was made by the Massachusetts Nurses Association. In that case, the judge ultimately sided with the hospital and ordered the nurses to comply with the mandatory vaccination policy. However, the case highlights that exemptions for medical conditions and religious beliefs are the best means of ensuring that vaccination policies do not breach human rights legislation. It also makes the interesting point that requiring an identifier (e.g face mask or badge) for those who have not taken the vaccination could be a breach of the person's privacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
