- Posted Tuesday April 20, 2021
Many employers will be hoping to return to the workplace in 2021 and the newly approved vaccines are likely to play a major role in this push. The government hasn’t ruled out making the vaccines compulsory, so what will this mean for you, and can it be enforced? Our HR Advisor Samantha Rigby explains what this could mean for GP Practices and staff.
It broke in the news last week about one NHS trust intending to make it compulsory for their employees to have the vaccine. Most of us will have seen the controversy raised when Pimlico Plumbers stated that they would make it compulsory for their staff, but they had received advice that it would be perfectly legal.
So where do we stand currently, and is this going to be an option for Practices?
The Department of Health have launched a five week consultation looking in to whether they will make the vaccine compulsory for Care Home workers, which Matt Hancock himself stated have a “duty of care” to take the vaccine. We are expecting to find out the result of this consultation in early July, which is likely to have a knock-on effect for NHS and practice staff.
Employers have a legal duty to ensure the health and safety of their employees, so a mandatory vaccine would look like an effective way of meeting this requirement. It may be a reasonable management instruction to tell staff to have the vaccine, especially for clinicians who will need to have direct contact with patients and for those where maintaining social distancing will be difficult.
There are two options currently being discussed by businesses on how to make vaccines mandatory within their teams.
- The first is forcing a change to employment contracts stating that all staff must receive a covid vaccination. This approach encounters several problems in that unilaterally changing an employment contract is breaching the contract and could result in legal action. Add to this that some employees will not be taking the vaccination due to medical grounds, religious reasons or even due to pregnancy, all protected characteristics covered by the Equality Act 2010, and there is the high possibility for a discrimination claim.
- The second option, which is certainly less risky (but not without any flaw) is to mandate vaccinations for relevant new starters. Personnel Today recently reported that the Justice Secretary has stated that “No Jab, No Job” is legal if it is entered into new employment contracts prior to the employee starting. The risk that is still present however, is that new employees may not have been offered the jab yet due to their age, as of course the roll out of the vaccine started with older and more vulnerable first, or some people may not be able to take the vaccine due to a protected characteristic.
Where do we stand?
Currently, the advice is to try and get as many frontline employees vaccinated as possible, but it is not currently mandatory. A policy of mandatory vaccination could also infringe on an employee’s right to privacy under Article 8 of the Human Rights Act 1998. The Practice might be able to justify this, but it is likely to be difficult where other measures are available to maintain health and safety, such as social distancing and the wearing of face coverings and gloves.
Practices are asked to be very careful how they store their data regarding employee’s vaccination status, if at all they do store this information, as it is “Special Category” data requiring extra protection under GDPR. In order to legally process such data, there must be a lawful basis for the processing, and additional conditions and supporting documentation must be put in place, including conducting an impact assessment to identify and minimise any risks.
A study carried out by NHS England on primary care has shown a 60-70% conversion rate from those employees that initially declined following a one to one meeting. Line Managers are encouraged to speak to employees to try and understand their reasons behind not getting the vaccination and provide information and support as necessary. On its website, Acas added: “Employers should support staff in getting the coronavirus vaccine once it's offered to them. Employers may find it useful to talk with their staff about the vaccine and share the benefits of being vaccinated.”
It is likely that the next few months will determine the future of mandatory vaccinations and we await for the result of the Governments consultation with Care Homes as this is likely to provide us with more information and be relative to both the NHS and Primary Care.
If a practice does choose to write in to their new contracts that vaccines are mandatory, then there is a good chance that this might be ok, however we will not know for sure until it is tested in law and this could take around a year to determine, so doing so at the moment, will be considered a risk.
What we do know for sure however, is that unilaterally changing contracts and adding this into pre-existing employee contracts, is almost certainly likely to end with the practice being taken to court.
If you are an FPM Member and have a question about HR or Employment Law, contact Samantha, our HR Advisor at email@example.com