In June 2021, the UK Government confirmed its proposal to make the Covid vaccination compulsory for care home staff. Legislation is awaited. Mandatory vaccination is expressed to be the Government’s “way out of this pandemic” and given that care homes are now one of its stated priorities following a five week consultation within this sector, workers there are first on the list. Ministers are reportedly also looking at extending this proposal to all NHS workers as well.
It is important to note that healthcare professionals have a duty of care towards their patients, which includes taking reasonable precautions to protect them from communicable diseases. While it can be a common requirement for employment of healthcare workers to provide evidence of immunisation against certain diseases, in the care home sector it can be limited and certainly mandatory vaccination is not yet a requirement. The current proposal represents a departure from public health policy, but Ministers justify this on the basis protection of the right to life for residents and staff is a reasonable and appropriate objective.
The main precedent in healthcare at present is the requirement for surgeons to be vaccinated against Hepatitis B, which is spread by blood and fluid. Covid is known to spread much more virulently by close contact when droplets containing the virus are inhaled or come into contact with eyes, nose or mouth. The UK’s first mandatory vaccination policy was in 1853 for children, by an early age, whose health permits against small pox. Travel to certain countries whose ecosystems and environment are far different to the UK’s will often require mandatory vaccination as well. These are generally accepted as proportionate and necessary for the protection of public health. We cannot disagree that protecting lives is an admiral objective.
On the flip side, though, legislation should balance public objectives against individual rights to freedom of choice, some privacy and freedom from discrimination. There are groups of individuals, albeit who appear to be in a minority, who do not yet wish to be vaccinated given the brief period over which the vaccine was tested and who may not fully trust the system. Trust is a major factor in some ethnic and religious groups, which contributes to vaccine hesitancy. These factors combine to produce pockets of the UK where the average adult Covid vaccination rate of 85% is much lower. According to NHS data on 24 June, the percentage of those aged over 50 who have been vaccinated was between 69% and 77% for certain ethnic minorities. Obviously, the government must do more to uniformly build trust in its vaccine programme.
The care home sector has a critical staff shortage and is a sector with a high proportion of ethnic minority workers. Mandatory vaccination could feasibly result in the current staff shortage worsening, creating a conflicting threat to health and safety for care home residents.
There is also a risk that mandatory vaccination could also give rise to indirect discrimination for those who are disabled for whom the vaccine is not recommended due to their underlying health conditions as they will be unable to comply with the mandate. The mandatory policy may also disproportionately impact certain ethnic minorities or religious groups if, for a reason connected with their ethnic origin or religion, they are unable to comply with the policy. In order to mitigate the risk of unlawful discrimination, a proportionate approach is essential. This means ensuring the obligation to have the vaccine is no wider than necessary and includes exemptions where appropriate. For example, the obligation doesn’t need to apply to everyone working in the care sector – only those who are working closely with those most vulnerable. Also, taking into account those care workers who may have an underlying condition which is incompatible with the vaccination; they should not therefore be excluded from employment in this sector (which is already in crisis and needs workers). You can see how this would also apply for other NHS workers too.
Workers may consider mandatory vaccination to conflict with rights under the Human Rights Act 1998, for example Article 8 right to respect for private and family life. This is however a qualified right, which means the government can balance it against the need for public safety and economic well-being of the country.
The need for a proportionate approach to vaccination is therefore an imperative. Employers considering making vaccination a mandatory requirement might first want to take positive steps to build trust in the programme and encourage a voluntary approach to build an inclusive environment.
If you are considering the mandatory vaccination of employees and would like to discuss how to assess what would be considered reasonable in the individual circumstances of your business, for any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner, Emma Bartlett, who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.