Vaccine requirement law for NHS staff in England could be enforced regardless of contracts
29 November 2021
What was claimed
The government's plan to make vaccines a requirement for employment within the NHS cannot be enforced unless it is already written into the contract that you must take part in medical trials and accept unlicensed drugs.
This is incorrect. If the new rule becomes law, employers would be required to enforce it, regardless of pre-existing contracts.
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.
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
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For the purposes of that scheme, we’ve rated this claim as false
because if the new rules about vaccinating NHS staff become law, employers would be required to enforce it regardless of pre-existing contracts.