By Aisha Shahid, trainee solicitor at Legal Futures Associate Bhayani Law
The Health Secretary, Sajid Javid, has confirmed the government is under consultation to U-turn mandatory vaccines for NHS Health and Social Care workers. Javid was faced with mounting pressure to halt the mandate for health workers in England to be double vaccinated by 1 April 2022, with the first jab required no later than Thursday 4 February 2022. However, this deadline is no longer applicable. The ”no jab, no job” policy was met with much controversy as it is reported that around 77,000 NHS workers are unvaccinated. The policy was accompanied by strong fears that it will lead the sector into a further major staffing shortage.
The Health Secretary has stated that ministers will launch a consultation owing to “dramatic changes” in the virus given the population have greater vaccine protection and data illustrates that emergency care or hospital admission with Omicron is approximately half of what occurred during the Delta variant outbreak. Javid added that based on the responses of the consultation, the government will look to revoke the vaccine mandate.
In addition, the mandate policy gave rise to numerous concerns, including from a discrimination and human rights perspective. The obligation to be vaccinated may be argued to be questionable and whether it is reasonable, necessary and proportionate in the workplace setting.
Tribunal case found vaccine dismissal to be fair
This is following a recent Employment Tribunal decision where a care assistant who worked at a nursing home was dismissed because she refused to have the vaccine. This was prior to the legal requirement for care-workers or individuals entering a care home to be fully vaccinated unless a medical exemption applied. The business in question was a small family run care home for dementia patients. Due to outbreaks at the care home, they planned for their staff to get vaccinated. The care assistant initially refused because of safety reasons and later stated in her disciplinary hearing that she would not get it for religious reasons. From the employer’s perspective, the family-run home was under pressure because their insurers could no longer provide public liability insurance for covid related risks. Owing to this and the care assistant’s reasons, the employer then dismissed the care assistant who then submitted claims for unfair and wrongful dismissal.
The Tribunal found in favour of the employers as they found the vaccine mandate at the care home to be a “reasonable management instruction” given the recent deaths of vulnerable residents and outbreaks in the care home. The Tribunal held that the case did not interfere with the care assistance’s human rights.
Given the very last-minute U-turn and pending consultation, employers and employees will be questioning what this means for them and what protections are in place for them. The decision held by the Tribunal for the above case is fact-specific and should not be considered to be setting a precedent. It will be important to assess the facts of the case and whether it was reasonable and proportionate. This would indicate that more cases will come up at Tribunal where vaccine mandates are considered to be necessary in certain workplaces.
An employee’s vaccination status may be linked to a disability, pregnancy, religion, a philosophical belief, or race, all of which are protected characteristics under the Equality Act 2010. Taking this into account, the onus is on the employer to ensure they objectively justify every individual case to avoid any potential claims for unfair dismissal and/or discrimination claims.
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