SoR advice on mandatory vaccinations

In light of the launched consultation from the government on the 9th of September regarding mandatory vaccination for frontline health and care staff, the SoR wishes to make our position clear and provide some legal background for our members.

Published: 23 September 2021 SoR

In light of the launched consultation from the government on the 9th of September regarding mandatory vaccination for frontline health and care staff, the SoR wishes to make our position clear and provide some legal background for our members.

Our position

The SoR does not support mandatory vaccinations because this could isolate and discriminate those who have legitimate medical reasons for not being vaccinated. The proposed legislation proposes to exclude those identified as being medically excluded but how this would work in practice is concerning. We are especially concerned that mental health reasons, such as extreme anxiety, will not be recognised and/or that protective measures for those with exclusions themselves further exclude and detrimentally impact on such members.

There is also an unfortunate pooling of all public vaccinations. The scientific evidence about the impact of flu vaccines versus the much greater impact of Covid vaccines in relation to reducing risk of contraction hasn’t been taken into account. The argument for forcing all NHS workers to have the annual flu vaccine is scientifically much weaker than data regarding Covid vaccines and could even undermine the effectiveness of any proposed legislation.

We are also concerned the populist style of the consultation document generates confusion and/or could undermine many members. For example, it refers in one area to all frontline staff and in another to the legislation covering all inpatients – are Government really suggesting that those supporting Outpatients are not on the Covid frontline?

However, at the same time, we strongly encourage our members to get vaccinated to reduce the risk to themselves and others in healthcare of falling seriously ill due to the virus.

Legal position currently

Mandatory vaccination is currently a complex legal area, covered in different strands of law. In terms of health and safety, the particular areas you should be aware of are:

  • If an employer can show having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment, it could in theory mandate the vaccination as a health and safety requirement, to protect both the employee themselves and others around them. This would be particularly the case where someone had no medical reason not to be vaccinated. This is most likely to apply in healthcare where Covid-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).
  • Employers are also obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks. Encouraging uptake of the vaccination among employees to protect themselves and everyone else at the workplace is one way to reduce the risks, but this obviously differs from mandating it.

In terms of other areas of law, if dismissal action was taken against an employee with over 2 years employment service for refusing vaccination, then the employer would have to show it was a fair reason for dismissal and an employee could potentially have an unfair dismissal case.

Mandatory vaccination is also likely to indirectly discriminate against those with protected characteristics. An example of these are:

  • Disability
  • Race
  • Age
  • Sex, pregnancy and maternity
  • Religion or Belief

There is also the European Convention of Human Rights with specific reference to Article 8 and 9, which offer other avenues to combat mandatory vaccination legislation and policies.

SoR members are unlikely to already have a mandatory vaccination aspect of their contract despite the Hepititus B vaccine currently being mandatory for healthcare staff. This would mean to implement this and for employers to take action against an employee for refusing a vaccine, that the employer would have to go through the usual employment practices to change contracts first.

As our colleagues at UNISON have stated, there is also a concern of those leaving the profession due to mandatory vaccination practices and legislation - this has already shown itself in the Care Sector within the UK. With a lack of radiography staff across the UK due to reduced government investment over a long period, this is a risky move for the employer and the government to take.

Alternative to legislation

As a result, the SoR supports an alternative to a contractual and legal requirement for mandatory vaccination - believing an introduction of a vaccination policy in workplaces with the aim being to encourage and support employees in getting the vaccine where it is offered is a sensible way forward.

Alongside this, any side effect absence from work due to vaccination should not be counted as sickness absence and therefore any vaccination linked absence not forming part of any Bradford Formula.

Focussing on a workplace policy that encourages and supports vaccination is an approach also currently recommended by ACAS guidance.  Any such policy should only be introduced in consultation with SoR industrial relations and health and safety representatives and staff.

If you have any concerns about such a policy being implemented in your workplace than you can contact your SoR Regional Official or Health and Safety Policy Officer for advice.