The Covid-19 Vaccine and Human Rights: A short guide for staff working in public bodies 30 April 2021 You can download this guide as a pdf here. On 8 December 2020, the Covid-19 vaccination roll-out started in the UK. As of 29 April 2021, over 34 million people in the UK have received their first dose of the vaccine. Frontline health and social care workers were among the first to receive the vaccine, having been prioritised due to their increased risk of exposure to and transmission of Covid-19 while supporting those who are most vulnerable to the virus. Conversations about the Covid-19 vaccine are rapidly changing with each passing day. However, the Human Rights Act, the UK law which protects our human rights, has not changed. This covers our right to make choices about our lives, as well as the right to be free from discrimination for any reason, including disability or vaccination status. It is therefore important for staff in public bodies to know about their human rights and the law that protects them when they are making decisions about the vaccine. This short guide sets out useful information about the vaccine and human rights for staff working in public bodies. This short guide sits alongside another short guide we have produced for people accessing or trying to access public services, and their rights in relation to the Covid-19 vaccination. You can access that guide here. NOTE: This guide contains information, it does not constitute legal advice, and should not be used as such. The information contained here is about human rights law in the UK as of 1 April 2021; the law may have changed since then. What is the vaccine? Covid-19 (often referred to as Covid, Corona, Coronavirus, SARS-CoV-2), is an infectious disease caused by a newly discovered coronavirus (the name given to a group of similar illnesses). Whereas most people infected with Covid-19 experience mild to moderate flu-like symptoms, there have been many deaths from this virus. There is an increased risk of death to people belonging to vulnerable groups, such as people with underlying health conditions. Covid-19 spread quickly globally and was declared a pandemic on 11 March 2020 by the World Health Organisation. As governments around the world have taken measures to combat the spread of the disease, scientists have worked on creating a new vaccine to eliminate and control Covid-19. There are now several different vaccines which all work in a similar way. We refer to them collectively as ‘the vaccine’ for ease. The vaccine can stop people getting very unwell from Covid-19 by helping the immune system to fight the virus without actually getting the illness. Like all medical treatments some people may have side effects from the vaccine and some people may not be able to take it for medical reasons. In the UK, the vaccine is available from the NHS and it is free. The vaccine is being offered to different groups of people at different times according to the priority list decided by the Joint Committee on Vaccination and Immunisation. At present, anyone who has received one or both doses of the vaccine must continue to follow lockdown rules, social distancing measures and any procedures put in place by their employer to ensure their workplace is Covid-19 secure. How are the rights of staff protected in law in the UK? The Human Rights Act sets out 16 rights that every person in the UK has, and the legal duties on public bodies to uphold these rights. The Human Rights Act puts a legal duty on public bodies across the UK to respect, protect and fulfil human rights in everything they do, every day. Examples of public bodies include the NHS, local authorities, courts, and public education authorities. This duty on public bodies is about upholding the human rights of people the bodies serve, and the staff working within them. This means staff working in public bodies, whether they are in England, Scotland, Wales or Northern Ireland, have both a legal duty to uphold the rights of those they are supporting, as well as having their own rights which must be respected and protected by their employer. At BIHR our expertise are with the Human Rights Act and this is therefore the focus of this guide. However, we know that conversations about the vaccine are not limited to staff working in public bodies (where there are human rights legal duties, as described above). The Human Rights Act applies to all 4 nations in the UK: England, Northern Ireland, Scotland and Wales. The vaccine also has implications for staff working for private or charitable organisations that are delivering public functions; these are sometimes called “hybrid or functional bodies”. This can include services in health, care and housing. Under the Human Rights Act, hybrid or functional bodies providing these services still have a legal duty to uphold the human rights of the people they support. The legal duties to protect staff working in these hybrid or functional bodies, fall within other areas of law, and which legislation offers protection will depend on where in the UK you live. These laws also cover staff working in other areas that are not performing a “public function” as set out in the Human Rights Act; e.g. hospitality and retail staff. Staff working inside and outside of the public sector in England, Scotland and Wales are protected by the Equality Act 2010 and other employment laws such as the Health and Safety at Work Act 1974. In Northern Ireland, discrimination is prohibited in similar situations as under the Equality Act, through section 75 of the Northern Ireland Act 1998 (public sector) and a range of other specific NI Orders (see further the Equality Commission for Northern Ireland). There are some important ways in which the Human Rights Act works in relation to other laws and with regulators of organisations providing goods and services, which means there are some additional protections for human rights: The Human Rights Act works as what we call a ‘Foundation Law” across the UK. This means that secondary legislation must be applied in a way which is compatible with human rights, as far as possible. Secondary lawis made when the UK/Westminster parliament has delegated law-making powers to a specific person such as a government Minister (e.g. much of the Covid-19 Regulations are made by the Health Secretary) or body, such as the devolved assemblies/parliaments. This means when those other laws are being made, which may include ones protecting staff rights, they should be compatible with human rights. Regulators, monitors and ombudsman of a range of areas of goods and services are public bodies, this means they need to act compatibly with people’s rights. For example, in the health and social care, the Care Quality Commission in England or the Care Inspectorate in Scotland, have a legal duty to respect, protect and fulfil human rights, and this also covers rights of staff. This guide focuses of the rights of people working for public bodies across the UK with regards to the vaccine to explain how the Human Rights Act may be relevant and provide protections, as well as duties. You can find out more about the legal duties of public bodies and the rights of people accessing healthcare services in our short guide to the Covid-19 vaccine and human rights. Which human rights are relevant when thinking about the Covid-19 vaccine? There are several legally protected rights involved when considering decisions about the vaccine if you work for a public body in the UK. In this short guide, we will highlight: The right to life (Article 2 HRA): Here we cover issues including the duty to protect life and failures to protect life. The right to private and family life, home and correspondence (Article 8 HRA): Here we cover issues including autonomy, wellbeing, and protecting private information. The right to freedom of thought, conscience, and religion (Article 9 HRA): Here we cover issues including the right to hold and act on strongly held beliefs. The right to be free from discrimination (Article 14): Here we cover issues such as the potential for employees to be discriminated against for not having the vaccine due to personal or medical reasons. Mandatory (or Compulsory) Vaccination There is currently no legal requirement for someone to have the Covid-19 vaccine in the UK. The UK’s current routine immunisation schedule provides protection against 14 vaccine-preventable infections – here is a list of current NHS vaccinations and when they are administered. These vaccinations are not mandatory. For childhood immunisations, parents or guardians make the decisions about whether a child is immunised and consent on their behalf. According to guidance from Public Health England, healthcare workers have a duty of care towards the people they are supporting, and this includes taking reasonable precautions to protect them from infectious disease. The guidance states that all new employees should undergo a pre-employment health assessment, which should include a review of immunisation needs. Staff involved in direct patient care are recommended to have routine vaccines, and some staff are recommended to have other specific vaccinations, such as Hepatitis B, depending on the nature of their contact with people they are supporting. The guidance recommends certain vaccines, however there is no specific law enforcing this. Individual trusts and employers may have their own working policies around vaccination and immunisation. Remember, any policies put in place by public bodies have to be applied compatibly with the Human Rights Act, as described above. There has been international news on mandatory vaccination in recent weeks. The European Court of Human Rights (ECtHR) supported the Czech Republic’s policy on compulsory pre-school vaccinations against nine diseases that are well known to medical science; it is important to note this case was not about the Covid-19 vaccine. Under the law there, families who did not agree for a child to be vaccinated were either fined or the child was denied access to pre-school. The ECtHR ruled that restrictions on the families’ right to private life (Article 8) were justified in the interests of the right to life (Article 2) of other children. Watch this space – BIHR are working on a blog about the Czech Republic ECtHR case on mandatory vaccination. The right to life (Article 2 HRA) This right means staff working in government and public bodies (we sometimes refer to them as public officials) cannot deliberately take your life and it includes a duty on governments and public bodies to take proactive, reasonable steps to protect life. This positive duty to take steps applies when the public body knows (or ought to have known) that your life is at serious and immediate risk. When governments and public bodies make decisions on public health where there is a large risk to life issue, such as a pandemic, they must think about protecting the right to life. The right to life is what we call an absolute human right, meaning that governments and public bodies must protect this right. As an absolute right, the right to life cannot be lawfully restricted, except in very specific circumstances but these are limited to criminal justice or security areas. Over the course of the pandemic, questions have been raised about whether the right to life of health and care staff has been protected by the government and public bodies, with shortages of Personal Protective Equipment (PPE) in health and care settings in the early days of the crisis giving particular cause for concern. The right to life has to be protected, but not at all costs. The legal duty to protect life involves public officials taking reasonable steps, not all possible steps. It is also vital to remember that action to uphold the right to life, does not mean that other human rights are unimportant. Every one of us still has the right to autonomy (Article 8), to have a say over our body and life. We also all have the right to freedom of thought, conscience, and religion (Article 9), to hold and express our own opinions and beliefs. See below for more information about these rights. How might the right to life be relevant to decisions on vaccines for staff? Rolling out the vaccine can be a seen as a reasonable step to protect people from a real and immediate risk. Since March 2020, over 127,000 people in the UK have lost their lives to Covid-19. Frontline staff in care, health and social work/support were among the first to be offered the vaccine due to their increased risk of exposure to Covid-19. By prioritising staff working in health and social care settings, the government is taking reasonable steps to protect your right to life. The government and many public bodies, including the NHS and local authorities, are encouraging all adults to get the vaccine in order to curb infection rates and protect the right to life of others. Public bodies may ask their staff to have a vaccination to safeguard the lives of the people they work with who may be in a high-risk group e.g., care home staff. However, the human rights of staff working for public bodies must also be respected and protected by their employer. If you work for a public body and you decide not to have the vaccine, your employer still has a legal duty to take reasonable steps to protect your right to life at work. For example, this might mean moving you away from frontline work to minimise your exposure to Covid-19. It is also important to understand that some of our legally protected rights are absolute, which means they can never be limited or restricted by the government. Others are non-absolute, meaning they can be limited or restricted in certain very specific circumstances to protect us or others from harm. To restrict one of our non-absolute human rights, the government must meet a three-stage test, which is explained below. The right to private and family life, home and correspondence (Article 8 HRA) The Human Rights Act protects our right to respect for private and family life, home and correspondence. This a non-absolute human right, which means that if a public body plans to restrict the right to private and family life, home and correspondence of its staff, this must be lawful, legitimate and proportionate. This right has four parts, but this guide will focus on staff’s right to private and family life as this is most relevant to the conversation about vaccines. You can about this right in more detail here. The right to private and family life includes: Physical and mental wellbeing Autonomy, meaning being able to make decisions about your life, including “unwise” decisions. This includes decisions about health and care including medical treatment and vaccinations. Being able to develop and maintain relationships with people. Being a part of a community, if you choose to. Having your private information kept private. This includes medical information. How might this right be relevant to decisions on vaccines for staff? Staff working for a public body may be asked by their employer to get the vaccine to protect the right to life of people accessing support as well as other staff. This right must be considered if this is the case because the vaccine is optional, and staff have autonomy to make decisions about their health. Staff working in a public body may be unable to have the vaccine due to medical or health reasons. For example, a person may have an allergy to the vaccination or its ingredients, or a health condition which means they are advised to not have it. This situation may also change as more data about health risks becomes available, for example the advice for pregnant women has changed in recent months. Staff working for a public body may need support from their employer to make a decision about the vaccine and subsequently to access it. For instance, being able to take time off to get the vaccine and dealing with any loss of pay. Staff working in public bodies should have their personal information stored safely and securely. Public bodies will need to consider this right if they ask staff to disclose their vaccination status or any reasons why they have not had it. Staff’s right to private and family life is a non-absolute right and it can only be restricted by the public body they work in if this is lawful, legitimate, and proportionate. We explain these 3 tests below. The right to freedom of thought, conscience, and religion (Article 9 HRA) This right recognises that people can believe and think what they like, this is absolute and can never be restricted. However, the ability to manifest, act on or exercise that belief or thought can be restricted, as long as this is lawful, legitimate, and proportionate. We explain these 3 tests below. How might this right be relevant to decisions on vaccines for staff? Some staff working for a public body might decide not to have the vaccine for reasons related to a strongly held belief, which includes religious, or non-religious reasons. For example, there may be specific faith-based beliefs around the vaccine, or those based on ethical veganism and the involvement of animal testing or animal products in vaccines. The 3 tests for restricting a non-absolute human right: It is important to remember all 3 of these tests must be met for a public body to restrict a non-absolute right, such as those highlighted above. Is it lawful? There must be a law that allows the restriction being proposed by the government or staff member in a public body or service. It could be argued by public bodies that their staff need to be vaccinated to protect the people they work with and support. This could be about the right to life in the Human Rights Act (Article 2, above), or the health and safety legislation. The following 2 tests still need to be met. Is there is legitimate reason for the restriction of the human right(s)? These reasons are written down in the human rights themselves. They are usually for national security, public health, safety or order or to protect the person or wider community. Action, which restricts a person’s non-absolute human right, to protect an individual or a group of people from a public health threat, such as a pandemic, falls within this test. However, the next test also needs to be followed. Is the restriction proportionate? This is very important, and in practice this is where lots of proposed restrictions to human rights are challenged and different actions or decisions are agreed. Proportionality means identifying the various options available and choosing the one which is least restrictive to achieve the legitimate aim. This means the public body should understand all the available alternatives to the restriction they are proposing and making a clear, reasoned decision about which option they have chosen and why. This should include consideration of the person’s situation. In particular it will be important to ensure that a restriction is not discriminatory; a restriction which may appear to be the least restrictive must also be non-discriminatory (see below). Important points that will be relevant to the restriction of staff’s human rights and these 3 tests: There is currently no law that makes Covid-19 vaccinations compulsory. However, in April 2021 the UK government has talked about possible changes to the law to make vaccination compulsory for people working in care homes for older adults. If this did happen, it is likely that “lawful” and “legitimate” tests for restricting non-absolute human rights (above) would be met. Applying this new law to an individual staff member would still need to be proportionate and non-discriminatory. If this new law only focused on care home staff, the law itself would likely be questioned about its human rights compatibility, as there would need to be justification for the focus on this one group of staff and not others (e.g. hospital staff). Prioritisation and accessibility / availability to the vaccination will be an important consideration if public bodies require their staff to be vaccinated and should be part of the proportionality consideration. In practice, public bodies are unlikely to restrict staff’s human rights by forcing them to have the vaccine in the physical sense of administering it without consent or restraining people (this is a real concern for people accessing public services, especially people with mental capacity issues - see our short guide for people here). What is more likely is that employment policies, contracts, terms and conditions, etc. may be changed to require staff to have the vaccine. This guide focused on human rights law, and is not intended to provide an explanation of employment law, but it is important to remember: Public body employers still need to show that their actions in relation to vaccination and staff actions comply with human rights. Such decisions must also comply with the Equality Act and not be discriminatory on any of the 9 protected characteristics (see below). Requiring staff to be vaccinated as a condition of employment, irrespective of the staff member’s beliefs, wishes or situation, could raise questions about constructive dismissal. There are protections around the asking health-based questions during requirement under the Equality Act which may extend to asking about vaccination status. There is a lot of uncertainty at the moment! The right to be free from discrimination (Article 14 HRA) The Human Rights Act protects our right not to be discriminated against in relation to any of the other human rights in the Act. This right means that we should all be able to enjoy our human rights without discrimination, and it protects against discrimination for any reason (e.g., sex, race, colour, language, religion, political or other opinion … or other status). These include the nine protected characteristics in the Equality Act (see below), as well as being possible to raise other grounds for discrimination, e.g., socio-economic status or combined grounds, e.g., being a young, black, disabled woman. Regardless of whether you are vaccinated against Covid-19 or not, you should not be discriminated against. This could include not offering someone a job or firing someone from their role if they do not have the vaccine. However, treating certain staff differently may not be discriminatory if it can be objectively and reasonably justified. How might this right be relevant to decisions on vaccines for staff? Prioritising certain groups of people to receive the Covid-19 vaccine is differential treatment, which is not necessarily discrimination, as long as the decision can be objectively and reasonably justified. In the UK, this prioritisation exercise has considered a range of risk factors (and has been challenged for not considering particular groups, such as people with learning disabilities who do not live in residential/care homes). Access to the vaccine will be important when considering staff rights, as not every staff member in a public body will have had access to vaccine at this time. For example, people under 30 without underlying health or risk factors, who still work in public bodies but not those on the prioritisation list, e.g. teachers. This will shift over time. Public bodies may discriminate against staff who cannot have or choose not to have the vaccination, as covered by their rights to private life and belief discussed above, e.g. this could be due to medical reasons or religious beliefs. Public bodies need to show how their employee vaccination and immunisation policy considers staff’s individual circumstances and rights, only restricting non-absolute rights set out above when the 3 tests are met. Where these policies may be directly or indirectly discriminatory, public bodies should set out situations when staff would be exempt from the vaccine. Public bodies may need to make reasonable adjustments for employees who cannot have or choose not to have the vaccine. This might mean looking at alternative roles with less or no direct contact with people accessing the service. Ensuring people are provided with the support they need to be able to access the vaccine. This might include ensuring that their staff vaccine policy is accessible so people can make an informed decision, addressing concerns about time off and pay to have the vaccine and having reasonable adjustments in place for people when the vaccine has been administered, such as health or sickness support around adverse side effects. Equality Act 2010 As well as the Human Rights Act, staff working for a public body (and private bodies) in Scotland, Wales and England are also protected from discrimination by the Equality Act. (We’ve suggested further information for Northern Ireland laws above). There are nine protected characteristics in the Equality Act: Age Disability Gender reassignment Marriage and civil partnership Sexual orientation, Pregnancy and maternity Race Religion or belief Sex Direct and indirect discrimination on the basis of one or more of these characteristics is unlawful. Vaccination policies that require all staff to be vaccinated should take into account whether this request has the potential for discrimination of staff under the Equality Act, as well as the Human Rights Act. What are the government’s plans around staff and the vaccine? In the last few weeks there has been increasing discussion about the possible introduction of vaccine passports or vaccine certificates or changes to the law requiring staff in some sectors, including public bodies, to have the vaccine. These are complex issues which may all impact human rights to different degrees, and the extent of the impact is difficult to know until there are more details. One area where the government has proposed changes is in care homes. On the 14 April 2021, the UK Government launched a consultation on mandatory vaccination for all staff working in care homes in England which have at least one person over the age of 65 living there. This consultation is only five-weeks, it closes on 21 May 2021; anyone can share their views using the public survey. The proposed mandatory vaccination policy would apply to all staff employed directly by the care homes or care home providers, as well as agency care staff and volunteers working in the care homes. The government consultation is also considering whether a mandatory vaccination policy should be extended to include other professionals visiting the care homes and ‘essential care givers’, those family or friends who have agreed with the care home that they will visit regularly to provide personal care. According to the information available, any new regulations in this area will allow for exemptions on medical grounds, however at present refusals based on cultural or religious grounds would not be exempt. The reception to these proposals has been mixed. Some care providers have welcomed the proposal to make Covid-19 vaccination mandatory for staff. Others have expressed concern that the proposals could backfire badly if staff choose to leave their jobs altogether rather than be vaccinated. The plan to introduce compulsory vaccinations for staff working in care homes in England raises questions about striking the balance between the human rights of staff against the rights of people accessing services who may be vulnerable to Covid-19. If there are changes to law or policy in relation to staff vaccination, it is important to remember that public bodies across the UK have a legal duty to respect, protect, and fulfil the rights of staff at all times. Any restrictions on non-absolute rights must be lawful, legitimate, and proportionate, and secondary legislation (explained above) must be applied compatibly with the Human Rights Act. There are also wider questions about why care homes have specifically been identified, and how the high levels of risk in other public bodies, such as NHS hospitals, has been considered in mandatory vaccination proposals. These proposals around mandatory vaccination only affect care staff in England. In Scotland, Wales and Northern Ireland, the vaccine against Covid-19 is encouraged but remains optional and there are currently no formal plans to make vaccination a condition of employment for health and care staff. Where can I find more information? BIHR have another vaccine explainer which is about people’s human rights. You can access it here. You can find out more about the Covid-19 vaccine in the resources below: UK Government Easy Read Guide on Covid-19 Vaccination UK Government Vaccine Guide for Adults NHS inform Scotland Coronavirus (Covid-19): Advice for key workers Public Health Wales Resources of Health and Social Care Professionals NHS guidance to support Covid-19 Vaccine uptake in frontline staff ACAS: getting the coronavirus vaccine for work Watch this space – BIHR are working on more resources about vaccinations including: An explainer on vaccine passports (or certification) A blog about the ECHR ruling on mandatory vaccination in the Czech Republic.