You might have missed the NHS vaccine policy U-turn because the UK news cycle is crazy. Here's why experts want you to follow suit...
worketc spoke to a range of experts on this divisive topic and many noted legal, employment and reputational risks attached to workplace vaccine mandates...
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“A week is a long time in politics” is a quote regularly attributed to two-time British Prime Minister Harold Wilson; his comment on an up-and-down currency crisis that spanned both the 1960s and 70s and that he, largely, was tasked with dealing with.
Wilson’s words are no less applicable to our current turbocharged political environment - we’re now on the Russian Foreign Secretary insults British Foreign Secretary stage of the Sue Gray report debacle (via the Met finally deciding to investigate the party-gate scandal, via the cancelling of Covid rules, via another potential investigation into the Prime Minister’s wallpaper) aren’t we? - and are alkso apt when finding the right phraseology to talk about our current news cycle.
A cycle in which the dead cats are piling on top of the previous deceased in efforts to distract from that exact growing pile of feline carcasses. And that’s not the only thing that Wilson was seemingly right about: worketc would also add that a week, in these ever-moving times, seems to be a long time in vaccine policy formulation.
In fact, it’s barely been a week since the Government U-turned on perhaps the UK’s most controversial vaccine policy: one which would have required all frontline NHS staff in England to get fully vaccinated or lose their jobs.
It’s a story that barely made a ripple on the UK news-scape - which worketc would argue says more about our current news cycle and those making headlines, than the importance of this story - despite it involving the biggest employer in the UK and centering around a topic that has sparked both protests and arrests.
Yet it did happen. Confirmed last week, Sajid Javid, announced that the government would be ditching the mandate, the announcement arriving mere days before an early February deadline that would have seen unvaccinated NHS employees, who had patient contact, have to take a first vaccine dose or face dismissal.
Below, worketc has the scoop on why those plans were controversial, why this isn’t an issue confined to the NHS, and why businesses planning to go down the vaccine mandate route should probably think again.
Controversial plans nixed
These now-nixed plans for a NHS vaccine mandate sparked much controversy.
Some critics, noting that as more than 120,000 NHS staff had yet to get a first dose, according to late January figures, such a move would’ve put further pressure on an already understaffed service.
Additionally, The Royal College of Nursing trade union called the planned mandate policy “self sabotage” whilst leaked advice, reported on in The Independent, argued the move was unnecessary due to the nature of the Omicron variant.
However, there are those that worry that the mandate about-face sends out the wrong health messaging. As reported in The Guardian, NHS Providers and the NHS Confederation, which both represent healthcare provision in England, argue that it could undermine wider vaccine take-up efforts.
Vaccine policy issues aren’t just about the NHS
The NHS aren’t alone in being at the centre of a vaccine policy row.
Whilst ministers have now u-turned on the health service’s planned ‘no jab, no job’ strategy, there are many employers that still have punitive policies in place.
Morrisons, IKEA, Ocado, Next and The AA currently all have vaccine policies which cut sick pay for unjabbed staff who have to self-isolate. These have all led to criticism from multiple angles. There’s been a backlash on social media - with #boycottmorrisons becoming a Twitter trending topic - as well as pushback from unions.
Some experts even predict businesses with vaccine mandates or harsh policies could face legal wrangles, brand damage, and a hit to their operations.
In fact, the issues that these vaccine mandates or punitive vaccine policies can cause for employers were explored in an article in for HR Magazine recently.
Spark staff to leave, or create issues with hiring staff; something which could be seen as especially damaging in a candidate friendly market
Raise questions over the reasons that employers were rolling out these policies - was it for the health of their staff or for solely economic reasons?
Spark questions over whether mandates, rather than education and ensuring staff had access to the best information on Covid and vaccines, were actually an effective workplace health policy
Undermines any other communication and engagement programmes organisations are running
Makes staff feel that any feelings/thoughts they have are not being taken into consideration
Raises the potential for indirect discrimination cases to be brought against the employer
Raises the potential for data law indiscretions - especially under GDPR
Questions the suitability of employers’ decision-making ability regards staff care when other options for work do exist e.g. employers could offer remote work and vaccines don’t stop transmission
You can read their in-depth opinions here. However, they weren’t the only experts to speak about the damage that vaccine mandates can cause.
Lots of other experts have spoken on the damage that wrongly applied workplace vaccine policies could cause - noting that it could hit employers workforce engagement, get them tangled up in cases which are overseen by grey areas of employment law, and could even drive up instances of fraud.
So, if you’re one of the 70% of workplaces that is intending to roll out a punitive vaccine policy, or have already done so, even if that’s driven by staff saying that they think unvaxxed colleagues are one of their biggest worries, you might want to read the below.
Further expert opinions on punitive workplace vaccine policies
They can undermine engagement and employee relations
Kate Palmer, Director at Peninsula: “Any changes to workplace policies may have an impact on engagement and culture within an organisation. Employers should assess the extent of this impact before implementing any changes, as it’s highly probable employees will be hesitant to such decisions. Effectively managing this hesitancy is key in ensuring ongoing positive employee relations.”
If an employer still decides to go forward with a vaccine mandate policy, they must do so with a proper consultative process
Kate Palmer, Director at Peninsula: “Employers must also remember that a change of this nature amends existing contractual terms and conditions, meaning businesses must follow proper consultation procedures, in line with employment law rules. Where the changes impact 20 or more individuals, the consultation must be completed collectively, with involvement from any recognised trade unions. By abiding by best practice processes, employers can minimise disruption to employee relations.”
Can end up fighting in a grey area of employment law
Nick Hobden, employment lawyer at Thomson Snell & Passmore: “As well as the more obvious risk areas, as set out above, there is also a risk that 'anti-vaxxers' may be able to argue that their beliefs regarding the vaccine constitute an 'ethical belief', which is capable of protection under the Equality Act 2010 (although note that, unhelpfully, the Tribunal hasn't been required to consider this question to date).
“In these circumstances, an individual may try to argue that the fact they are only being paid SSP and not full pay amounts to less favourable treatment compared to those who do not share their protected characteristic. An employer will need to be comfortable that they can justify the differential treatment, for example, on the basis that those who are able to carry out work should receive higher pay than those who aren't.”
Could be argued that vaccine mandates are non proportional
Nick Hobden, employment lawyer at Thomson Snell & Passmore: “Given the deadly nature of the pandemic and the urgent public health need to protect members of the public, including employees, a legitimate aim of protecting the health and safety of staff in the workplace could be established without difficulty.
“But employers face a potentially difficult hurdle on proportionality that other COVID-secure measures in the workplace, not to mention testing, provide a more proportionate and less discriminatory means of achieving that aim.
Could create unfair dismissal claims
Elena Cooper, employment consultant at Discreet Law: “It's highly unlikely that employers will be able to unilaterally reduce or cut enhanced sick pay for employees who refuse to be vaccinated and then take sick leave.
“Similarly, terminating non-vaccinated employees without a thorough termination process, fair reason for termination and an assessment of risk is highly likely to lead to unfair dismissal and discrimination claims.”
Could spark instances of fraud
Tracey Carpenter, insider threat manager at Cifas, said: ‘Organisations that have rigorous COVID-19 vaccination policies may find that current and prospective employees try to get around these. In May 2021 it was reported that over 1,200 companies worldwide were offering fake vaccination and test certificates which may be used to obtain employment or receive sick pay against company policy.
Creates reputational risk
Dr Anthony Renshaw, regional medical director at International SOS: “Mandating COVID-19 vaccines needs a clear and considered approach to avoid reputational risk. Decisions should be rational, based not just on legal grounds but on sound public health principles. Yet human resources leaders are often stuck in a complex interplay between changing governmental policies and an evolving epidemiological landscape.”
Could end up with staff feeling like you are taking personal choices away from them
Olimpia Kicielińska, Head of HR at ShareSpace: "We are continually looking to governmental institutions concerning specific Covid-19 and vaccination policies and guidelines. Currently, our hands feel somewhat tied regarding aspects like checking vaccination certificates, etc. We would be far from forcing or pressuring vaccination as it is a personal choice.”