Private hospitals could face ensuring frontline workers are vaccinated against Covid if the government follows through with an expected mandate for the NHS in England.
The BBC reports that government is expected to confirm shortly that frontline NHS staff in England will need to be fully vaccinated, with a deadline set for next spring to give unvaccinated staff time to get both doses.
The government’s consultation on making vaccination a condition of deployment in the health and wider social care sector ended on 22 October.
The document makes clear that subject to consideration of consultation responses, it plans to amend the Health and Social Care Act 2008 to insert a requirement that as part of providing safe care and treatment, providers must “assess the risk of, and prevent, detect and control the spread of infections, including those that are healthcare associated”.
The document adds that if this requirement is introduced, it would apply to Care Quality Commission regulated activities whether they are publicly or privately funded.
Commenting on what this would mean for private hospitals, Melanie Stancliffe, partner at Cripps Pemberton Greenish, told Health & Protection that if this legal requirement comes into force, private hospitals would be required to dismiss workers who refuse the vaccine and are not medically exempt.
“If the legal requirement is that you are vaccinated unless you have a medical exemption and you’re not vaccinated, then employers will look to dismiss because they will have to and it will potentially be a fair dismissal because you can dismiss someone if they cease to be able to fulfil a condition of their job.
“The legality requirement if a truck driver loses their drivers’ license is you can dismiss them because they can no longer fulfil the legal requirements for that role – so staff could face dismissal for refusing a vaccine unless medically exempt.”
But Stancliffe added staff will be concerned that they are being forced to take the vaccine as a requirement of undertaking their job.
“There are some staff who will be medically exempt and their medical exemption would apply whether they are employed in the private sector or the public sector, and when we look at the balance of risk the government is obviously taking the view that it needs to compel people to do this.”
Although Stancliffe points out there remains uncertainty over whether these rules will come into force at all.
“At the moment, my understanding is it’s in consultation so it’s not actual law and there’s a debate about what time it should come in,” she added.
Mirror care home requirements
Beverley Sunderland, managing director of Crossland Employment Solicitors, explained changes to the rules are likely to mirror care home requirements whereby no-one can work, whether employee or agency worker, in these establishments without being double vaccinated or medically exempt.
Though Sunderland added employees who believe that the state is interfering with their human rights – such as article 9 the right to freedom of thought, conscience and religion, or article 8 the right to respect for a private and family life, can apply for a ruling under the European Convention on Human Rights which still apply despite Brexit.
“The government does have a defence of objective justification – have they balanced up the rights of workers with the aim of trying to protect their citizens from serious illness and death.
“Given that Public Health England’s own research shows that even after one vaccine the transmission rates reduce by between 38-49% it is difficult to argue that this is not a proportionate response.
“Also, under the European Convention on Human Rights members are permitted to pass laws to protect its citizens in the interests of public health.”
When contacted by Health & Protection, a Department of Health and Social Care spokesperson confirmed the department will set out its response to the consultation in due course.