Covid-19: Requirements for Employees to be Vaccinated

Paul Scully Excerpts

Monday 24th January 2022 Westminster Hall

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)]

It is a pleasure to serve under your chairmanship, Mr Paisley. I congratulate the Petitions Committee on securing the debate, and the hon. Member for Linlithgow and East Falkirk (Martyn Day) on the way that he presented it on the Committee’s behalf. Clearly, this is an issue that can divide opinion, with people on both sides holding very strong views. I am grateful to everyone who contributed. As many Members will know, I sat on the Petitions Committee for a number of years. Now, as a Minister, I am sitting on the other side of the fence, accounting for the Government’s position, so I understand how invaluable the work of the Committee is.

As we all know, today’s debate was prompted by an online petition to prohibit employers from requiring staff to be vaccinated against covid-19. The hon. Member for Strangford (Jim Shannon) asked why I was present, and whether I was substituting. Although the petition referenced the public sector and the NHS, I am afraid that it is because of the wide-ranging wording of the petition that he has got me. However, I will clearly touch on many of the issues that have been raised, because the debate has been focused on the NHS, and understandably so. The petition has been signed by more than 190,000 people, which goes to show the strength of the issue.

There is concern among those who have signed the e-petition, and all MPs who have spoken, about the steps that the Government have taken to make vaccination a condition of deployment in certain settings. There is also concern more generally that some employers outside those sectors are seeking to mandate the covid-19 vaccines for their workforce. I will come to that, but the Government’s starting point, as I think all Members have said today, is that vaccines are our best defence against covid-19.

The overwhelming majority of us have taken the positive step of accepting the offer of vaccination. Some 79% of eligible adults in England have now had a booster, including over 91% of over-50s, who are more vulnerable to the virus. We are the most boosted large country in the world. Recent data from the UK Health Security Agency shows that around three months after those aged 65 and over receive their booster, their protection against hospitalisation remains around 90%. The vaccines work.

However, those vaccines do not just protect us and our loved ones against covid-19. It is because of the vaccines that we have one of the most open economies in the world, so if we are to maintain the collective protection that we have built up, we need everybody to choose responsibly and get vaccinated. That will ensure greater freedom for us all.

[Jim Shannon]

In my contribution, I referred to the fact that a year ago, we were clapping NHS workers across the whole of the United Kingdom. Everybody, including the Prime Minister and everyone in this room, did that. Does the Minister not understand—I say this very respectfully—the deep feeling of hurt that those people have? We clapped them, and now we are telling them that we no longer need them unless they do what they are told.

[Paul Scully]

I will come to the issue of NHS workers in a second, and show what we are doing regarding non-patient-facing NHS workers and the moves we are taking to help people get vaccinated.

[Paula Barker]

I am interested in what the Minister is saying, but he has just referred to an economic argument. Does he not agree that sacking up to 126,000 NHS staff would have a severely detrimental effect on our economy?

[Paul Scully]

My economic argument was not specifically about the NHS. It was about the fact that vaccines are the way out of this, to get back to a sense of normality—a new normal, whatever that normal is—and allow people to protect businesses, livelihoods and jobs around the country as best we can. Clearly, the best way to work with the NHS is to make sure we can work with those who are unvaccinated to get them vaccinated and, eventually, boosted.

[Rachael Maskell]

I want to come back to the response I had from the Under-Secretary of State for Health and Social Care, the hon. Member for Erewash, to a parliamentary question I tabled. It said that after 10 weeks the efficacy of the vaccine against omicron is depleted to between 40% and 50%. That clearly means that, first of all, the vaccine does not give us the protection that we would hope it would give; secondly, it does not give us protection against transmissibility. How can the Minister make the statement that the vaccine is the best way out of the virus when, in 10 weeks’ time, it clearly will not be?

[Paul Scully]

Preliminary evidence about the effectiveness of the vaccination against the omicron variant is still emerging, with data suggesting that vaccine effectiveness against symptomatic infection and hospitalisation both rise after a booster and, in the case of the latter, goes up to 88%.

For most people, whether to get vaccinated is a matter of personal choice, but there are some high-risk settings in which we believe it is proportionate to take further steps to protect the most vulnerable. Throughout the pandemic, the overriding concern for the Government, the NHS and the care sector has been to protect the workforce and patients. People working in health and care look after some of the most vulnerable in our society, and therefore carry a unique responsibility. Everybody working in health and social care with vulnerable people would accept a first responsibility to avoid preventable harm to the people they are caring for. That is why, following consultation, regulations were approved last year in the House that meant that from 11 November 2021, all people entering a care home needed to prove their covid-19 vaccination status, subject to certain exemptions. Following further consultations, my right hon. Friend the Secretary of State for Health and Social Care announced that anyone working in health or wider social care activities regulated by the Care Quality Commission would need to be vaccinated against covid-19. That includes NHS hospitals, independent hospitals, and GP and dental practices, regardless of whether a provider is public or private.

That policy has two key exemptions: for those who do not have face-to-face contact with patients, and for those who—as we have heard—have not had a vaccination because they are medically exempt. Uptake of the vaccine among staff working in those settings over the past few months has been promising. Since the Government consulted on the policy in September, the proportion of NHS trust healthcare workers vaccinated with a first dose has increased from 92% to 95%—an increase of nearly 100,000 people.

[Esther McVey]

I have heard it said that the mandation policy is some sort of nudging exercise, a way to get as many NHS workers vaccinated as possible, but it will not be implemented. If that is true—well, even if it is not true—as distasteful a method as that is, it does provide the Government with a get-out, so please will the Minister take back to the Government all the powerful points that he has heard today and get this policy reversed, because it is not too late?

[Paul Scully]

Clearly, the Department of Health and Social Care will be listening to everything my right hon. Friend says here and in the main Chamber, and indeed all the contributions that we have heard today. But in terms of the policy, the NHS will continue—I will go through this in a second—to encourage and support staff who have not been vaccinated to take up the offer of the first and second doses.

The science is really clear about the benefits of the vaccination. It protects those at most risk from the virus and it has saved thousands of lives so far. Every unvaccinated healthcare worker increases the risk to themselves, their colleagues and the vulnerable people in their care. It is our responsibility to ensure that we give NHS patients and staff the best possible protection.

We recognise the concern about impacts on workforce capacity and the ability to deliver health and care services, particularly over the challenging winter period. I want to reassure hon. Members that the Government, in collaboration with the NHS and the adult social care sector, are taking steps to mitigate that risk and to continue to encourage workers to take up the vaccine. For example, we put in place a 12-week grace period, allowing time for workforce planning and for colleagues who are not vaccinated to make the positive choice to protect the people whom they care for and themselves. The enforcement of vaccination as a condition of deployment in health settings will not commence until 1 April, to assist providers over the winter period and to help to minimise workforce pressures. And we have increased the number and diversity of opportunities to receive the vaccine to make getting it as easy as possible.

[Ben Bradley]

I feel for the Minister to some extent, because obviously he is not a Health Minister; I am sure that he will forgive me for raising this point none the less. He talks about the work that is going on—loads of work is going on—to try to encourage people to be vaccinated. Many still will not be.

In the course of the debate, I have had the figures sent over to me from my county council. We lost 500 care home staff in November. We are currently set to lose 3,000 staff in the wider home care sector on 1 April. That is a huge proportion, 10%, of our workforce within the county. It will have a huge impact on our ability to deliver services: there could be up to 300 people whom we can no longer care for. We will do as much as we can to mitigate that, but will my hon. Friend take back to the Health Minister just how much of an impact it will have on our ability to deliver care services?

[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.