Vaccine requirement law for NHS staff in England could be enforced regardless of contracts

By | November 29, 2021

A widely shared post on Twitter, from a user who claims to be a former NHS human resources employee, argues that NHS workers who refuse to be vaccinated cannot be fired. Screenshots of the tweet have also circulated on Facebook.

The post claims: “Unless there is a clause in your signed contract of employment saying you must take part in medical trials & accept an unlicensed drug, whose contents you’re not told, to be injected into YOUR body, they CANNOT sack you”. 

The post appears to be a response to the government’s announcement of its intention that in England, all patient-facing NHS staff, and employees in wider social care settings that are regulated by the Care Quality Commission, will be required to have the Covid-19 vaccines as a condition of employment from April 2022. 

This means that employees in these roles who have not been vaccinated and refuse to do so, and are not medically exempt, may lose their jobs.

The government has said that, subject to parliamentary approval, the new regulations will be introduced on 1 April 2022 through the 2008 Health and Social Care Act, which requires registered persons to ensure the provision of safe care and treatment.

Vaccination against Covid-19 was made a condition for working in care homes in England from 11 November. 

The Welsh and Scottish governments have reportedly said that they do not have plans to bring in similar measures. The Northern Ireland Department of Health has announced its plans to conduct a public consultation on mandatory Covid-19 and flu vaccination for “new recruits to the health and social care workforce”.

Laws about vaccine requirements would be able to overrule employment contracts

A spokesperson for the Department for Health and Social Care (DHSC) told Full Fact that it was “incorrect” that vaccinations must be included in employment contracts for the requirement to be enforced, and said the decision to make vaccines a requirement for NHS staff in England is “about patient safety”. 

When asked, the DHSC clarified that any dismissals which occur as a result of the new rules will be due to a legal requirement placed on employers and will therefore be independent of contractual provisions that exist between the individual and their employer. 

David Greenhalgh, employment partner at Excello Law, told Full Fact that if the government’s proposals become law, “the employer would have to comply with the law and that would trump the employment contract”.

He said that if the government mandates that people in a particular sector have to be vaccinated, if they refuse without having a medical exemption, that refusal would be a “fair reason” to terminate their employment. He said that an employer would have to follow a “proper process” before dismissing an employee who refused to get vaccinated. 

Rubel Bashir, senior associate at the law firm Slater and Gordon, said that whether or not an employer can fairly dismiss someone based on vaccine status would depend on what legislation is passed by the government. Under current law, it could be deemed as an unfair dismissal depending on individual circumstances and the risks posed by the employee being unvaccinated, but if new legislation is passed this may change.

He added that this is a “developing area”, which is currently “untested” at tribunal. 

Tina Din, associate in the employment and professional discipline team at Bindmans LLP, also said that while the issue remains untested at present, it seems “likely” that care providers in England will be able to rely upon the “obligations and restrictions” imposed by compulsory vaccination requirements as a “potentially fair reason for dismissal”.

She added that an employer would also need to show that the decision to dismiss falls within the range of “reasonable responses” available to the employer.

Public services trade union Unite says that employers will need to make efforts to persuade staff to have the vaccine and look at redeployment away from a direct face-to-face role. But, it says that where this is not possible, employers “may have to dismiss people who continue to refuse the vaccine but do not have an allowable exemption”.

Being vaccinated is not taking part in a pre-licensing medical trial

All of the vaccines currently in use in the UK have already published phase 3 trial results on safety and efficacy, and data on longer term protection and safety will continue to be collected over the coming years. We have written more about this previously. 

Although the vaccines haven’t received full marketing authorisation, they have all been authorised for use by the Medicine and Healthcare products Regulatory Agency which regulates medicines and medical devices in the UK. The AstraZeneca, Pfizer and Moderna vaccines are made available under conditional marketing authorisations in Great Britain. 

The European Medicines Agency has authorised the use of all three of these vaccines, under its own conditional marketing authorisation. It is under these authorisations that the AstraZeneca, Moderna and Janssen vaccines are made available in Northern Ireland. 

The Twitter post also suggests that the vaccine ingredients aren’t widely available. Again, this isn’t true, the “ingredients” in the vaccines are widely published, including on the MHRA website.