This week’s 11th hour decision not to make vaccination against Covid-19 a condition of employment in NHS and social care came on the same day that Formula 1 announced mandatory vaccination for all people in the paddock. Legal experts talk to Rob Moss about the possible knock-on effect for other employers.
The 1 April deadline for frontline NHS staff in England to have received two jabs – meaning they would need their first jab by tomorrow – was scrapped on Monday when health ministers announced a new consultation on the jab requirement.
Health and social care secretary Sajid Javid told the House of Commons that the risk of hospital admission for the Omicron variant is around half of that for Delta. He said it was right and responsible to “revisit the balance of risks and opportunities that guided our original decision last year”.
Kingsley Napley employment partner Richard Fox said: “This consultation has implications beyond the NHS. That is because the policy to insist on vaccination for NHS workers from April may well have influenced other employers in the private sector to introduce a similar mandatory vaccination policy.
“If the government U-turns, that could have a knock-on effect and change the mood music around the whole issue of vaccination in the workplace. Some employers may want to rethink their approach to avoid being out of step or looking unreasonable.”
Amid pressure from health leaders and unions, as well as a staffing shortfall of more than 100,000 roles, ministers confirmed that, subject to consultation, the government will revoke the regulation in health and all social care settings.
Martin Williams, head of employment at Mayo Wynne Baxter, said that care homes have already dismissed workers because of this policy which came into force on 11 November 2021. “The original initiative of mandatory vaccinations has increased take-up, but it has not been comprehensive.
“With the NHS facing the prospect of losing an estimated 80,000 workers, something had to give. The government will point to changes in the spread of variants but, in reality, it is a policy that was laced with risks, and it has blinked first,” he said.
With Labour party support, the consultation – no documents have been published yet – will inevitably result in a reversal of original policy. “The concentration now is on mopping up the mess,” said Williams. “Dismissed workers may now be emboldened to make claims of unfair dismissal even though employers had a fair reason to dismiss at the time.
“While it is laudable for government to be flexible in responding to prevailing circumstances, terminations, by definition, have more than a sense of finality. Career defining decisions were made as an experiment carried out on the care sector. An experiment that is not going to be repeated with the NHS. That is, at least, until the circumstances change again in six months?”
Fox said that some employers may face claims as a consequence of having insisted on staff being vaccinated before now. “Of course, the matter remains a risk-reward consideration for each employer, requiring them to weigh carefully the legal risks of going down the compulsory vaccination route, either as a condition of employment or as a condition of attending the workplace, against the health benefits of such a policy,” he said.
“But if it is okay for front-line NHS staff not to be vaccinated, why is it not okay for employees in the private sector, some employees may feel. The results of the consultation launched today will have important ramifications in more ways than one.”
On Monday, as speculation grew of the Department of Health U-turn, Formula 1 announced that it would make full vaccinations mandatory for all drivers, teams, media, hospitality workers and any guests in the paddock.
An FIA spokesperson said: “Formula 1 management will require all travelling personnel to be fully vaccinated and will not request exemptions.”
Williams said that even if there is no mandatory vaccination for NHS staff, it does not mean that other employers will shy away from such a move.
“They will not have legislation to back them up but commercial imperatives will play their part. Formula 1 racing is introducing mandatory vaccination for all personnel working in the paddock this season. They simply cannot afford to let their guard down.
“Other industry sectors and individual employees could take a similar view. If they view mandatory vaccination as essential for business reasons, they will see this through regardless of what happens in the NHS or care sector. The expected government action does not change much, because the position being reversed had limited legal reach in the first place.”