Covid-19: Requirements for Employees to be Vaccinated

Ben Bradley Excerpts

Monday 24th January 2022 Westminster Hall

[Ben Bradley (Mansfield) (Con)]

It is a pleasure to serve under your chairmanship, Mr Paisley. I put it on the record that I am massively pro-vaccine. It is the right thing to do, and it is the right way for us to move on from this pandemic and to protect ourselves. However, I agree with what the hon. Member for Linlithgow and East Falkirk (Martyn Day) said in opening the debate about the importance of bodily autonomy and education, as opposed to forcing people to take the vaccine. I certainly do not think that businesses should be forcing existing staff, and I cannot imagine how seeking to do so would benefit their attractiveness as an employer or their viability as a business.

I want to focus my remarks on public services. As a county council leader, I am directly affected by this issue as someone who has to deliver social care services. Although staff made an incredible effort over Christmas to try to mitigate the massive staffing pressures that exist in the sector—my thanks go out to them all, because it was an incredible effort to do that and to protect those services and vulnerable people as far as possible—the impact has been huge.

As a county council, we have already gone, in just a few months, from having no waiting list for social care provision to having 400 on the waiting list. It is hugely important that we are not further hit by additional staffing issues. Care plans are regularly handed back to my director of adult social care at 4 o’clock on a Friday afternoon for the council to pick up, because care services cannot deliver them over the weekend. We are just about managing so far, but further issues, including mandatory vaccination, will continue to hit us.

We have lost some staff already, and we are set to lose more. Overnight, hospitals and NHS trusts put out figures on how many staff they are set to lose. My local hospital is set to lose around 200 staff from 3 February. As my right hon. Friend the Member for Tatton (Esther McVey) said earlier, that can only be detrimental given the continuing backlogs and the challenges of existing of NHS pressures.

I did not vote for mandatory NHS vaccines. In hindsight, I would not have voted for care sector vaccines, either, but unfortunately I cannot go back in time. The Government still have time to rethink, and that is my plea to the Minister. The wider debate about the importance of bodily autonomy and our rights and freedoms is hugely important, but it is also the case that, in this instance, the health argument does not stack up.

As we move out of the pandemic—touch wood—and beyond the period of most intense risk, I cannot see how it can be okay for these staff to have worked throughout the riskiest time of the pandemic, when transmission was at its highest, only for us to sack them now, as it falls away and the risk recedes. We know—the evidence suggests it—that omicron is less impacted by the vaccine. We have argued, when it comes to vaccine certification, which I also did not vote for, that it is okay to have a daily test and that that mitigates the risk of not being vaccinated, but we are not making that case for NHS or care staff. I do not see how we can argue both positions at the same time.

As we have touched on, there are 73,000 or 80,000 staff to go across the NHS and big numbers across the care sector. That can only make things worse when we have backlogs and waiting lists in both sectors. I do not know how getting rid of 80,000 staff across the NHS chimes with our commitment as a Government to 50,000 more nurses or doctors, or whatever it was. It is nonsensical.

I totally understand people’s wish to choose a vaccinated carer over an unvaccinated carer, but truth be told, that is not the choice; it is an unvaccinated carer or no carer. If it were my elderly relative being looked after, I would certainly prefer them to have somebody rather than nobody. Listening to Radio 5 this morning, I heard a GP making the same argument about a colleague in his practice who had been there for many years and had managed to work throughout the pandemic quite successfully, as far as access to GPs goes—that is another matter that we could debate for hours—but who now faces no longer being able to see patients over the next few weeks. How is that better than having an unvaccinated GP?

There is still time for the Government to reconsider. I really think we need to delay the 3 February deadline, hopefully with a view to reconsidering this measure altogether in due course. I recognise that there are probably significant legal implications of reconsidering the decision for the care sector, with people already having lost their jobs in that sector, but still, this is not a good plan and it will not help us to deliver these services. I call on the Government to reconsider. The evidence does not make a strong enough case, from a health point of view, to override those freedoms, to override bodily autonomy or to exacerbate the staffing issues that already exist, so I call on the Government to think very hard over the next week or two about whether this is something they really want to do. I certainly do not think it is.

--- Later in debate ---

[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.