Review rationale for mandatory jab after government u-turn

How does the government’s u-turn on mandatory vaccination impact employers in other sectors? The government has decided not to make vaccination against Covid-19 a condition of employment in the NHS and social care sector – should employers in other sectors follow suit and, if they don’t, what are the risks? 

On 31 January, Sajid Javid, the Secretary of State for Health and Social Care, made a statement to the House of Commons that the government will launch a consultation on ending vaccination as a statutory condition of deployment in health and social care settings. The rationale, he said, was that the risk of hospital admission for the Omicron variant is around half of that for Delta, so ‘it was right and responsible to revisit the balance of risks and opportunities that guided our original decision last year.’ Following a consultation, and subject to Parliamentary approval, the Government will then revoke the regulations. 

The announcement came on the same day that Formula 1 announced mandatory vaccination for all personnel in the paddock. As the BBC reported, it means no-one will be able to work in the confined space where the teams operate without being fully vaccinated. The policy will apply to all personnel working within F1, including drivers, teams, media, hospitality workers and any guests who attend the races. BBC Sport understands that the FIA is willing to consider individual exemptions on a case-by-case basis, as long as the individual in question was prepared to have a more rigorous testing regime than fully vaccinated people. Having recovered from Covid will not be accepted as an exemption.

Personnel Today poses the question: ‘How does the NHS mandatory jab U-turn affect other employers?’ and considers the implications for other sectors of industry across the UK. They flag how the government’s earlier policy of insisting on vaccination for NHS workers from April may well have influenced other employers in the private sector to introduce a similar mandatory vaccination policy. So, does the government’s u-turn impact other employers? It’s a question I put to Anne Sammon:  

Anne Sammon: “I think potentially it does because I think some employers will have been thinking well if the NHS is implementing this, then it's a reasonable thing for us to be implementing. Now, what we've said all along is any employer outside the sphere where mandatory vaccinations were required needs to think very carefully about what their rationale is for requiring vaccination and that remains the case. Just because the NHS has chosen not to go down this route doesn't mean that makes it impossible for other employers to do so. The really key thing here is that the employer has a really good rationale as to why vaccination is the appropriate option and has thought about the implications from a discrimination perspective in particular, in terms of going down that route.”

Joe Glavina: “The article suggests that employers could face claims as a consequence of having previously insisted on staff being vaccinated and it talks about a ‘risk-reward consideration’ for each employer, weighing up the risk of claims against as against the health benefits of such a policy. So, in your view, is there a risk and, if so, what would those claims be for?” 

Anne Sammon: “So I think there's always been a risk of claims from employees outside the mandatory vaccination sphere on the basis of potential discrimination claims. So, we've heard arguments run by individuals that requiring vaccination impacts their religion or belief and there are a whole variety of beliefs that can come into play from veganism through to just the anti-vax movement itself. So, there's that kind of claim. We've also seen claims, potentially, from those who were more reluctant to have the vaccination. So, for example, pregnant women who had that kind of flip flop from the government were at the start you weren't supposed to be vaccinated, then you were, you can see that they might have more reluctance and so in those circumstances they might be able to bring some sort of claim around that. Then outside the discrimination piece I think there's the unfair dismissal risk because if you have terminated people's employment on the basis of them not having vaccination then that could potentially lead to a claim of unfair dismissal.”

Joe Glavina: “The government says it has looked at the data and is persuaded Omicron is less of a risk and that justifies their u-turn for the NHS are care sector. How should employers outside those sectors who currently have mandatory policies approach this?”

Anne Sammon: “Yes, so it goes back to that piece of what's the purpose of requiring vaccination in the first place? The government has decided that it's going to consult on all of this and I think one of the really important things is for employers that haven't already implemented those policies to keep a careful watch on what comes out of that consultation because it may be that there are interesting themes, or interesting statistics, facts, that come out through that consultation that need to be weighed up as part of an employer's decision making process. So, I think that's the first thing. If were an employer in this situation, for the time being I wouldn't want to start implementing a policy, I'd want to wait and see what comes out of that consultation. Then I think the second phase is thinking through, well, actually, what information do we have? This is really tricky for employers, a lot of them won't necessarily have the scientific background to be able to analyse all the evidence that we have around how bad is Omicron compared to previous variants? What's the risk of new variants arising? So, for a lot of organisations, they're just doing their best to try and balance those risks and so long as they can show that they have thought through all of these things, and that they've tried to minimise the impact on those with particular protective characteristics, they start to be in a good place to defend claims.”
On the subject of Covid-19 and vaccinations, you may have seen in the news how the number of employers following IKEA’s lead and cutting sick pay for unvaccinated staff is growing. Anne Sammon recently talked to this programme about the legal risks of adopting that kind of policy. That programme is: ‘More firms cut sick pay for unvaccinated staff’ and is available for viewing now from the Outlaw website.