- Posted Monday January 4, 2021
The Oxford-AstraZeneca vaccine has been given to the first patient today and the entire country is looking on with excitement at the prospect of finally seeing the back of this pandemic. However, as key medical figures have said - to get to that point, it is imperative that the population is vaccinated.
Working in a GP Practice or for the NHS is riskier than other forms of work and it is therefore arguably more important for NHS/ GP Practice employees to receive the vaccine. But what happens if an employee refuses? Where does the practice stand?
First of all, an employer cannot compel an employee to have a vaccine. But can a practice dismiss an employee for refusing to have the vaccine?
It is worth starting by stating that an employer can always dismiss an employee, the question is whether the employee will be able to take the employer to tribunal for compensation after the dismissal. So what do you need to consider if you have an employee that refuses the vaccine?
What is the reason that the employee is refusing the vaccine?
There are 9 protected characteristics described in the Equality Act 2010. What has now been dubbed as "Vaccine Hesitancy" in itself is not a protected characteristic. If the reason is related to a disability, however, then it is possible that the practice could be seen to be discriminating by stating that all employees must have the vaccine, but this is only going to be the case for employees with medical evidence that prevents them from having it. Some vaccines (such as MMR VaxPro) contain pork gelatin. Muslim or Jewish employees may refuse such a vaccine on religious grounds, but there is expected to be confirmation of the contents of the COVID-19 vaccines available from the manufacturers to confirm if this is the case.
Employees that have less than 2 years’ service cannot claim unfair dismissal. Therefore, if your employee does not meet one of the above criteria for discrimination and does not have 2 years’ service, there is no legal action that they can take if they are dismissed (so long as their notice pay has been paid).
An employee with over 2 years’ service may be able to claim unfair dismissal, but it is likely in the eyes of renowned employment lawyer Daniel Barnett in a recent video that the Practice would be able to put across a very compelling case for the dismissal being reasonable as having a protected workforce is “mission-critical.” The practice would however need to ensure that they tried to redeploy the employee first to a less patient-facing role. It is worth noting that the position is far weaker in none NHS/Health care businesses, where employees would be far more likely to win their case.
This scenario has not yet been tested in law and it is likely to take around 12 months for us to have a more definitive answer. What we do know, however, is that an employee that is dismissed due to not taking the vaccine who claims Unfair Dismissal will be able to claim up to a year’s salary should they win the tribunal.
Anti- Vaxxers vs 'Vaccine-Hesitant' Beliefs
A point worth considering is that an ‘anti-vaxxer’ is very different from someone who is ‘vaccine-hesitant’. The vaccine-hesitant are usually anxious about the vaccine, whereas an anti-vaxxer has a genuine belief that the vaccine is not safe, may contain a microchip and other such beliefs. They are often very vocal in their beliefs. If an anti-vaxxer is speaking to patients about their belief, it could be considered that their behaviour is actively going against the message the practice is trying to deliver, and therefore dismissal may be appropriate.
Can the government make the vaccine compulsory?
This isn’t likely, although it has been done before - the government passed the Vaccination Act in 1853, where parents would be fined if they didn’t allow their children to be vaccinated against Smallpox.
In current law, it is stated that somebody must give their consent to be vaccinated. This also cannot be implied, i.e. if you as a parent send your child to school on vaccination day, this is not considered consent. In fact, if a medical professional tried to vaccinate you against your wishes, they would be committing a criminal offence of assault/ battery and would almost certainly lose their medical registration.
In terms of NHS practice, then consent must be given voluntarily and freely by the patient or their guardian. They must be informed about the process, benefits and risks and be able to communicate their decision to the clinician. They should be given enough information to be able to make a decision before giving consent, and this material should be relevant to the individual patient, properly explained and if they have any questions, they should be answered in full.
For the government to make the vaccine compulsory would require new legislation that would need to get through the House of Commons, the House of Lords and receive Royal Ascent. Matt Hancock has said that this won’t happen and it would likely be ‘political suicide’. Interestingly, however, it is currently legal in the USA for vaccines to be compulsory.
If you need any help with a disciplinary or dismissal situation, FPM Subscribers can contact our free HR Helpline at email@example.com