Covid-19: Requirements for Employees to be Vaccinated

Ian Paisley Excerpts

Monday 24th January 2022 Westminster Hall

[Ian Paisley (in the Chair)]

Before we begin, I remind Members that they should wear a face covering when not speaking in the debate. That is what the House of Commons Commission would like Members to comply with. I also remind Members that they are asked by the House authorities to have a covid lateral flow test before coming on to the estate, and to give Members and staff space when they are seated and entering and leaving the Chamber. I call Martyn Day to move the motion.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

I beg to move,

That this House has considered e-petition 599841, relating to requirements for employees to be vaccinated against covid-19.

It is a pleasure to serve under your chairmanship, Mr Paisley. This might be one of the more interesting debates to emerge from the coronavirus pandemic. It has implications for health and business, and there are serious ethical questions.

The concept of mandatory vaccination is not new. Historically, children were required to be vaccinated against smallpox in the mid-19th century by the Vaccination Act 1853, which made it compulsory. Now, following on from mandatory vaccination for care home staff in England by 11 November, frontline health and social care workers in England will need to be fully vaccinated by 1 April, which means that they will need to have their first jag by 3 February.

Several countries have taken harsh stances on requiring vaccinations, such as Italy, which is requiring all over-50s in the workforce to be vaccinated. Given these recent developments, this is not some theoretical or abstract debate; it has considerable real-world implications for us here and now.

The petition was started by Ryan Karter. It has already gathered more than 175,000 signatures, and it still has several months to run until it closes on 1 May. The Government responded on 25 November, and I will comment on the response in due course. I am grateful to the creator and all those who have signed it, as the scale and speed with which it is being signed is a clear measure of the public interest in the issue.

The petition states:

“Make it illegal for any employer to mandate vaccination for its employees.”

At its heart is support for the principle of informed consent. In speaking to Ryan prior to this debate, he made me aware of several reasons he had for starting it, not least of which was the concern that mandatory vaccination for frontline health and social care workers will lead to a loss of workers, increase the pressures of staff shortages, and be unfair and disrespectful to essential workers. That is a theme I will expand on later.

Ryan also has concerns over vaccine safety, the evidence of their efficacy, and the failure of current policy to account for natural immunity to covid. The petition goes on:

“All British people should have the right to bodily autonomy and must never be coerced into receiving a medical intervention they may not want.”

That does not seem a particularly radical position to advocate, especially as the principle of consent is an important part of medical ethics and international human rights law. It is highlighted on the NHS website, which states:

“Consent to treatment means a person must give permission before they receive any type of medical treatment, test or examination.”

It adds,

“This must be done on the basis of an explanation by a clinician”,

and,

“Consent from a patient is needed regardless of the procedure”.

That is a position I find comforting and reassuring.

What do the UK Government say? In responding to the petition, the Government make a number of points. On the efficacy of vaccination, the response states:

“The vaccines are the best defence against Covid-19 and uptake of the Covid-19 vaccination has been very high across the UK. Vaccination reduces the likelihood of infection and therefore helps break chains of transmission.”

I assure the Minister that in that aspect he has my full support and agreement, and the weekly publishing of the covid-19 vaccine surveillance report evidences that fact. However, it should be noted that the reports state:

“Vaccine effectiveness against symptomatic disease with the Omicron variant is substantially lower than against the Delta variant, with rapid waning. However, protection against hospitalisation remains high, particularly after 3 doses.”

The Government’s response to the petition states:

“Government has identified limited high risk settings where there is strong public health rationale for making vaccination a condition of deployment. The Government has recently announced that health and social care services will need to ensure that workers who have direct face to face contact with service users have been fully vaccinated against Covid-19, following consultation.”

It should be mentioned that within the NHS there is an existing, long-standing precedent requiring vaccination against hepatitis B for those undertaking exposure-prone procedures due to the potential health risk involved. Having said that, the expansion of this position to cover covid-19 is on a very different scale.

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[Martyn Day]

The hon. Member has read my mind. She makes a well-put point, which I was just about to come on to. I have a slightly different figure, but the principle is the same: it cannot help the situation.

In November, a Department of Health and Social Care impact assessment found that as many as 73,000 NHS staff in England could lose their job as a result. I do not think we will split hairs over a few thousand; we will not know the exact number until we find out how many people have had their first dose by 3 February. These Government policy job losses would come on top of the long-standing staff shortages experienced by the health service. Some estimates put the figure at 99,000 current vacancies in NHS England. If we do the maths using the figures I have just quoted, we could be looking at 172,000 vacancies in England come April. That position is not going to help the NHS provide care at this time of great pressure. It presents a very real threat—one which may put patients at risk and place further pressure on a significantly depleted workforce.

There are growing calls for this policy to be, at the very least, delayed. Pat Cullen, general secretary of the Royal College of Nursing, has said:

“We are calling on the Government to recognise this risk and delay a move which by its own calculations looks to backfire… To dismiss valued nursing staff during this crisis would be an act of self-sabotage.”

His reference to self-sabotage is very well put. Frances O’Grady, the TUC general secretary, has said:

“We are in the middle of an NHS staffing crisis, borne not only from covid absences, but also long-term problems that need long-term solutions. Now is not the right time to introduce more bureaucracy.”

The BMJ has highlighted that recruitment agencies are concerned about the effect of the policy on their ability to place staff, as well as the additional bureaucratic burdens of processing documentation, which is likely to take around 45 minutes per locum. I hope that the UK Government will listen to those concerns and the petitioners, look at the example of the devolved nations and think again, before they do serious damage to workforce levels and capacity in the NHS.

On requirements by other employers for staff to be vaccinated, the Government’s response states that

“an employer who proposes to introduce a requirement for staff to be vaccinated will need to consider the existing legal framework, including the law on employment, equalities and data protection. Whether or not it is justifiable to make COVID-19 vaccination a condition of deployment will depend on the particular context and circumstances.”

Some UK businesses have declared that all employees must be vaccinated or face a review of their contracts. The legality of that has been disputed by employment lawyers and trade unions, although, of course, it may be legal if it is written into contracts. For most of the UK, power over employment law is reserved to Westminster; only in Northern Ireland is it devolved. Decisions over companies’ requirements rest with those businesses.

On legal protections for workers, the Government response states:

“In addition to contractual and common law protections, there are relevant statutory frameworks, such as the Equality Act 2010, which provides protection against unlawful discrimination. The Employment Rights Act 1996 provides various general protections, including against unfair dismissal and unlawful deductions from wages. In addition, collecting, storing and using information about workers’ vaccination status will engage the law on data protection. Employers will need to ensure that they have acted in accordance with their legal obligations when making decisions on requiring a COVID-19 vaccination.”

That sounds like a potential minefield of complexity if ever there was one.

Last April, the Equality and Human Rights Commission said:

“Employers are right to want to protect their staff and their customers, particularly in contexts where people are at risk, such as care homes. However, requirements must be proportionate, non-discriminatory and make provision for those who cannot be vaccinated for medical reasons.”

From an employment law and non-discrimination perspective, the safest route is to encourage vaccination, not to mandate it.

As I draw my remarks to a close, I note that there are so many points that could be made in this debate but limited time to make them. I have only scratched the surface while setting the scene, and I look forward to hearing what other right hon. and hon. Members have to say. I reiterate my main point that an “educate and encourage” strategy would be a better approach and that there is still time for the Government to change tack on mandatory covid vaccination for England’s NHS workers.

[Ian Paisley (in the Chair)]

I am not going to set a time limit. If Members stick to no more than six minutes, they will have ample time to get everything in and it will allow everyone to have a free-flowing debate.

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[Jim Shannon (Strangford) (DUP)]

I am very pleased to be here, Mr Paisley. I think this is my second consecutive Westminster Hall debate under your chairmanship—you will soon be here as much as I am, at this rate.

[Ian Paisley (in the Chair)]

Impossible.

[Jim Shannon]

I jest. I congratulate the hon. Member for Linlithgow and East Falkirk (Martyn Day) on setting the scene so comprehensively. In the light of the contributions from hon. Members, there is absolutely no doubt in my mind that there is a clear case to make on behalf of workers, and I will speak about that as well.

On 7 December 2020, 90-year-old Margaret Keenan—a grandmother originally from County Fermanagh—rolled up her sleeve at University Hospital Coventry and took her place in history. Each of us remembers that day exceptionally well. I know that we do, Mr Paisley, because she was from Fermanagh in Northern Ireland, but I believe that she was an inspiration to every one of us who took our jabs and boosters.

Mrs Keenan became the first person in the world to be vaccinated against covid-19. Since then, almost 10 billion doses of the three main vaccines have been administered around the world. We thank our Government, and the Minister, for that incredible initiative. I have absolutely no doubt that many people are alive today because of the vaccine roll-out. It is just unfortunate that others did not get that chance. There is no doubt that all those who quickly followed in Mrs Keenan’s path helped to create the turning point in the first pandemic in living memory. In countries that quickly rolled out the vaccine programme, it has had a major impact on cutting hospitalisation and death rates.

I do not think anyone can ignore the fact that more than 200,000 people have signed the petition. Although that shows how many people felt moved to sign it, my interpretation of petitions is that they reflect only a small proportion of overall support, because many people who would have agreed with a petition’s intent and wording did not get to sign it.

I heard in the news today that Israel is considering a fourth dose of covid vaccine for the over-60s. The evidential base indicates that a fourth dose seems to make the over-60s resistant to many other diseases as well. Maybe that is something that our Government should be looking at to ensure that our people are safe in the long term.

To date, 9.87 billion doses of the vaccine have been delivered worldwide, and 4.09 billion people—52.5% of the world’s population—are fully vaccinated. We should recognise that as a remarkable undertaking and an achievement of human effort and medical science since that very first dose just over a year ago in December 2020. It has been achieved purely through voluntary effort and by successfully persuading people that getting vaccinated was the right thing to do not only for themselves, but for the people around them. I use the word “persuading” because that is what the Government should be doing rather than coercing or strong-arming people into doing things that they feel strongly about.

We must recognise, however, that vaccination has not eradicated covid-19. We have not vaccinated our way out of the pandemic, however much that might have been intended. New variants have emerged, and people are talking about the B.1s and C.1s, so people have become re-infected and have continued to transmit the virus—that was mentioned on the radio today. I am a supporter of the vaccine programme. I am triple-vaccinated because I chose to be vaccinated, as has just over half the world’s population, but I strongly believe that being vaccinated against this virus should remain a personal choice.

How life changes. I bet that a year ago every one of us in this room was out clapping for our NHS staff on Thursday nights—I know that my family and I were, because we recognised what those in the NHS were doing. Yet a year later we have a different policy, as if none of that mattered any more. It mattered a year ago, and we were prepared to say so; it should matter now, too. I am not sure whether the Minister is deputising for someone else, or maybe I have got that wrong, but in any case, I am concerned that Government policy seems to be to coerce and strong-arm people into getting a vaccine. I have to stand by those who come to see me about this matter.

Mr Paisley, you and I have discussed the nurses, NHS care staff and other staff who routinely work on wards making things happen. They have chosen their vocation and made a commitment. Many of them have shed tears about the Government following through with a policy that will take their jobs away from them. In her invention, the right hon. Member for Tatton (Esther McVey) rightly mentioned the figures. Where will we be with cancer and cataract operations, or treatment for heart disease and strokes? We all know the conditions for which there are now long waiting lists, and those lists will just get longer if we pay off 80,000 staff, 115,000 staff, as the hon. Member for Linlithgow and East Falkirk said in his opening speech, or 175,000 staff, as others have said.

It is a foundation principle of medical ethics that consent must be given for any medical procedure. Making vaccination against covid-19 a requirement for employment is opening the door to imposing penalties on those who, for their own reasons, do not comply with the law. As I have said, I have been contacted by many constituents who work in healthcare and have expressed very real concerns that mandatory vaccination for covid-19 will lead to a two-tier workplace—yes, it will—that will see vaccinated employees rewarded by financial incentives over those who choose not to be vaccinated. That is happening across the world.

Every one of those staff has dedicated themselves to their excellent work. We all know that our healthcare workers are driven by their duty of care and commitment to their chosen field while being in the most underpaid, under-resourced and overworked profession. If we lose that number of staff from the healthcare sector in February because they have made a personal choice, waiting lists will get longer and diagnostic investigations will not take place in the timescale that we hope to see.

I commend the healthcare workers who choose to come forward to be vaccinated. We need to make the distinction between vaccine refusal and vaccine hesitancy. Hesitancy is based on trust, and is something we can work on. Rather than directing health system resources and political muscle towards imposing penalties for non-compliance, we would do better to invest further in education and more efforts to facilitate meaningful conversations between concerned people and healthcare professionals.

We cannot and should not become a society or Government that penalises or sanctions people for making a personal health choice. The hon. Member for Westmorland and Lonsdale (Tim Farron) made an excellent point about libertarianism. It is a policy of his party that I share—by the way, I do not share all Liberal Democrat policies; just this one. This is about liberty, freedom and choice, and about people following the vocation they love without being penalised for that choice.

When we make legislation for the workplace, as for anywhere else, we must always balance public objectives against individual rights to freedom of choice and freedom from discrimination. We must recognise that trust is a major factor for people from some ethnic and religious groups, some of whom will have a problem with vaccination from a religious point of view. Should they be penalised because they work in the NHS? The Government would do better to build confidence in the vaccine programme and see vaccination rates increase, instead of creating a legal requirement for the workplace.

Let us use this Westminster Hall debate to build trust in the vaccine programme and respect choice, because choice is not only part of the informed consent process, which we should all adhere to, but a valued and inherent sign of respect for the person. To pursue compulsory vaccination flies in the face of all that is key and core for our NHS workers, including doctors, nurses, care staff and others. I believe that we must stand by them.

[Ian Paisley (in the Chair)]

Before I call the SNP spokesperson, I thank all Back Benchers for self-regulating their time during the debate, which has landed perfectly for everyone. Thank you for doing that without me having to set a time limit.

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[Paul Scully]

I thank my hon. Friend. He talks about the impact, and we understand the concerns about that. That is why, apart from the measures that I outlined a second ago about making it as easy as possible to have the vaccine and giving the grace period and the ability to flex within that, the NHS is planning further increases in engagement with targeted communities, where the uptake is lowest. That includes extensive work with ethnic minority communities and faith networks to encourage healthcare workers to receive the vaccine.

We have obviously had an analysis of the equalities implications. That was published in the equalities impact assessment, alongside the consultation response. We are obviously engaging with colleagues such as my hon. Friend to hear about real-world results and impacts and respond accordingly. But as the chief medical officer, Chris Whitty, has rightly said,

“people who are looking after other people who are very vulnerable do have a professional responsibility to get vaccinated”,

so we remain committed to bringing these measures in on 1 April.

Outside these specific settings—health and care—it is fair to say that there could be some other circumstances in which it may be lawful for an employer to require staff to be vaccinated. There is no general “Yes, it is lawful” or “No, it’s not lawful” answer to that question. It will depend on the facts and details of each case. There is a lot for an employer to consider.

For example, what is the current evidence on the consequences of covid-19 both for the individuals and for the organisation? What are the employer’s reasons for imposing a requirement to be vaccinated? Given the particular work being undertaken, are those reasonable? And what are the circumstances of the individual employee? Are there Equality Act 2010 considerations in play? An employer would need to weigh the answers to all those questions and more before being confident that it was lawful to require employees to be vaccinated.

I should be clear that there is a difference between how an employer might treat those who are already employed and those who are not. When it comes to those who are not already employed, there is more scope for an employer to establish a requirement to be vaccinated, subject to the employer satisfying themselves that they can pass relevant legal tests, such as on discrimination. The employer might make such a requirement a condition in the contract; it then becomes more a matter of whether to accept the contract. It would then be a matter of personal choice, just as a prospective employee might consider a requirement to work a number of late or early shifts, or weekends.

For those already in employment, the issue is really about what might happen if they refuse to be vaccinated. After all, an employer cannot physically force someone to have a vaccination. There is the issue of the consequences of refusing to be vaccinated. Could an employee be suspended without pay, refused access to certain shifts, roles or tasks, or disadvantaged in some other way? Could they fairly be dismissed? Those are the key concerns that people will have. I do not believe that it is appropriate to make vaccination a special case. Such cases should be treated in the same way as other instances where an employee feels that they have been treated unfairly at work.

Employment law provides an extensive framework to protect employees from unfair treatment, including unfair dismissal. That framework applies to refusing to be vaccinated just as much as it does to other circumstances. This framework, rather than imposing a blanket set of prescriptive terms and conditions about when a dismissal is fair, allows the facts of each case to be weighed and considered, so that what is fair and what is not can be properly established in the light of any evidence, the employer’s situation and the business circumstances. I strongly believe that the legal framework for employers around the country allows for the interrogation of all relevant facts, provides the right checks and balances, and ensures that employers can take action as a result of someone’s refusal to be vaccinated, where that is appropriate.

I conclude by acknowledging that there is a fine balance to be struck. On the one hand, we obviously want people to recognise the benefits of the vaccine, and as a matter of choice, we want to ensure that they have all the injections and boosters needed to minimise the impact of the pandemic on them, their friends and neighbours, the health service and the economy. On the other hand, we want to ensure that vulnerable people are properly protected and do not face unnecessary risks. The employment law framework and the steps that we are taking to make vaccination a condition of employment in certain settings strike the right balance.

Once again, I thank those who contributed to the debate. It has been a valuable discussion. I also thank all the workers in the NHS, who have kept us safe throughout this period, and who continue to do so, despite the winter pressures. We will always make sure that we work with those valued workers, who serve our public so well.

[Ian Paisley (in the Chair)]

Mr Day, would you like a minute or two to wind up? I would like to put the Question, though; I think that is important.

[Martyn Day]

Thank you very much, Mr Paisley. It has been a great pleasure to take part in today’s debate. On behalf of the Petitions Committee, I thank everyone who came along to take part. We had a well informed, educated debate. The Minister said something in his summing up that I fully agree with: we need everyone to get vaccinated, but I hope that we can make that a choice for them, and can comply with the principle of informed consent.

As my hon. Friend the Member for Coatbridge, Chryston and Bellshill (Steven Bonnar) pointed out, if Argyll and Bute can reach the figure of 99.8% of people being vaccinated through a policy of education and engagement, that can be done without mandating. If we mandate, we risk what has been described as a serious act of self-sabotage. There are few policy decisions where we can look over the dyke and can see what is coming, but if we lose anywhere from 70,000 to 100,000 staff from NHS England, it will create a workforce crisis that could have been avoided. I hope that the Minister takes that message back to the Government.

[Ian Paisley (in the Chair)]

Thank you, Mr Day, and I thank the Minister for taking five interventions, making the debate go so well, and giving everyone the opportunity to raise valuable points.

Question put and agreed to.

Resolved,

That this House has considered e-petition 599841, relating to requirements for employees to be vaccinated against covid-19.