In depth

Will health sector employees be required to have the jab?

Gateley Legal

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Comments made by Professor Chris Whitty in the Downing Street broadcast on 22 February may result in health sector employees facing increased pressure to be vaccinated against COVID-19. 

The degree to which employees can be forced to have the vaccination has generated a great deal of debate and even amongst health care workers, there is a divide with many not taking up the opportunity to have the vaccination.

Professor Whitty described it as “a professional responsibility” for doctors’ other health and social care staff in order to protect patients. 

Professional responsibility?

Doctors will have a professional obligation to take into account the practice guidance suggested by the General Medical Council (GMC). Under the heading of ‘Risks posed by your health’ of the GMC’s Good Medical Practice, it states that “you should be immunised against common serious communicable diseases (unless otherwise contraindicated)”

Nurses, midwives and nursing associates are also subject to professional standards of practice and behaviour set out in the Nursing and Midwifery Council (NMC) Code. That includes the requirement that they “take all reasonable personal precautions necessary to avoid any potential health risks to colleagues, people receiving care and the public.”

Others in the care sector may be subject to the Code of Conduct for Healthcare Support Workers and Adult Social Care Workers in England.

All carry the message that individuals within these sectors take into account the health and wellbeing of those in their care.

No jab – no job

Professor Whitty thought that those employed in the health sector should have the vaccination on a voluntary basis. There is no legal mandatory requirement for anyone to have the vaccine and no one can be forced to do so.

However, given the professional standards that employees in the health sector are expected to meet there could be consequences in respect of their work should they fail to have the vaccine in circumstances where this is reasonably regarded as creating a risk to patients and colleagues. 

Each case would have to be considered on its own facts. The employee’s decision not to have the vaccine may be justified due to concerns about the impact on their own health. Employers would need to be careful not to discriminate in the way that it treated employees who had not had the vaccine. 

Consideration would need to be given to the reasons put forward as to why the individual did not have it and assess whether it was linked to a ‘protected characteristic’ under the Equality Act 2010.

It should not automatically follow that a person will lose their job because of a failure to get vaccinated as there may also be measures that can be agreed that will reduce the risk posed to others and the individual which may involve a change in some duties or working practices.

Government guidance

Given the continued debates relating to the vaccine and whether employers can make it a job requirement it may be useful for the Government to issue some formal guidance. 

However, given that it is such a controversial topic it is unlikely to do so and it will be the Employment Tribunals – when they catch up with the backlog of cases - that will be making the decisions as to whether employees in all sectors have been treated fairly in relation to their views regarding the vaccine.  

Would you like further information regarding the Government's guidelines around vaccination?

For further information on the UK Government's guidelines around employee vaccination, please read our recent insights:

Vaccinations can you make them compulsory?

Vaccinations unfair dismissal and the band of reasonable-responses

Vaccinations: what are the discrimination risks?

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