You can download this guide as a pdf here

16 December 2021

On 8 December 2020, the Covid-19 vaccination roll-out started in the UK. As of 16 December 2021, over 50 million people have received their first dose, over 46 million people have received their first and second dose, and over 25 million people have been given a booster/third dose. 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.

Nearly one year on from the start of the vaccine rollout, conversations and guidance about the Covid-19 vaccine continue to be subject to change 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.

We have also produced an Easy Read guide to Covid-19 vaccinations and human rights. You can read this 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 16 December 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. Initially the vaccine was offered to different groups of people at different times according to the priority list decided by the Joint Committee on Vaccination and Immunisation. Currently anyone aged 16 and over can get a 1st and 2nd dose of the vaccine (most children aged 12 to 15 are only being offered a 1st vaccine, some children are being offered 2 doses depending on their circumstances). Booster vaccines are now being offered to provide longer term protection against getting serious ill from Covid-19 to everyone over the age of 18, and some people over the age of 16, for more information visit the NHS website.

At present, anyone who has received one or both doses of the vaccine, and a booster dose, and those people that have received three doses and a booster dose, should still follow any rules set out to protect people from Covid-19, which may include social distancing measures and any procedures put in place by their employer to help keep their workplace Covid-19 secure (these measures still need to respect human rights, which we set out below).

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 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 on 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:

Here we cover issues including the duty to protect life and failures to protect life.

Here we cover issues including autonomy, wellbeing, and protecting private information.

Here we cover issues including the right to hold and act on strongly held beliefs.

Here we cover issues including groups of people being treated differently.

Mandatory (or Compulsory) Vaccination: England

On 11 November 2021, Changes to regulation 12 of the Health and Social Care Act 2008, which covers the safe care and treatment of service users and patients accessing health and care services, came into force in England. The change set out that care workers (and other staff) who work within Care Quality Commission (CQC) regulated services in England (excluding Shared Lives arrangements) that have any face-to-face contact with service users, patients, or residents must be fully vaccinated against Covid-19 (usually two doses). This change will also apply to NHS staff that come into contact with patients or service users from Spring 2022. Health and care employers in England (such as care homes) must uphold this change to the law, as they now have a legal duty to deny access to unvaccinated staff to settings where they would be in contact with vulnerable people. This is why workers who are not vaccinated may have lost their jobs. It is important to be clear that this change of law does not force a health or care worker to be vaccinated nor does it make it a crime to not be vaccinated.

There is currently no legal requirement for members of the general public or workers outside of health and care settings to have the Covid-19 vaccine in the UK. 

This law applies to anyone employed directly by the care provider (CQC regulated care providers) or the NHS (from April 2022), as well as staff employed by agencies, volunteers, and those that work within CQC regulated health and care environments (e.g., tradespeople) who come into contact with vulnerable people within the setting. The law does provide exceptions for people who cannot have the vaccine for clinical reasons.

Mandatory (or Compulsory) Vaccination: Scotland, Wales, and Northern Ireland

The changes to the law explained above currently only apply in England. Scotland, Wales, and Northern Ireland have their own laws about health and social care. Currently, the laws in these 3 nations do not require staff to be vaccinated in order to enter health and care settings, but this may change.

Ministers in Scotland and Wales have stated that they are not planning on making Covid-19 vaccinations a mandatory requirement for staff working within health and care settings. The Northern Ireland government announced on 9 November 2021 that they are opening a consultation looking at mandatory vaccinations for new recruits working within health and care settings, so the situation here may change once the consultation has been complete.

Mandatory (or Compulsory) Vaccination: General Points

Individual public bodies may have their own working policies around vaccination and immunisation in addition to the law, these policies must adhere to the protections set out within The Employment Rights Act 1996. Remember, any policies put in place by public bodies must be applied compatibly with the Human Rights Act, as described above.

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), which includes making decisions about health such as immunisation, were justified in the interests of the Right to Life (Article 2) of other children. Though this case was in Europe and about the Czech Republic, it does set down some important principles about how to manage potential conflicts between the Right to Life and the Right to Private Life when thinking about vaccinations.

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 170,000 people in the UK have lost their lives to Covid-19 (Covid-19 on their death certificate).
  • 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 took a reasonable step to protect the right to life of frontline staff.
  • 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 always 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.
  • By implementing legislation to ensure that public officials (who are in contact with vulnerable people) are vaccinated against Covid-19, the government is protecting the people accessing services Right to Life, by taking steps to safeguard them against 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 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.

1. 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. If working within a health or care setting in England, amendments to The Health and Care Act (above) may allow for vaccination against Covid-19 (and other communicable diseases) to become a condition of entry into your workplace.

2. 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.

3. 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:

·        Changes to The Health and Social Care Act 2008 (above) would likely meet both the “lawful” and “legitimate” tests for restricting non-absolute human rights (above). However, applying the change to the law to an individual staff member would still need to be proportionate and non-discriminatory.

·        Prioritisation and accessibility / availability to the vaccination is an important consideration for public bodies that 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). However, employment policies, contracts, terms and conditions, etc. may have changed to require staff to have the vaccine. This guide focuses 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, if suitable alternatives were not provided – ie redeployment to a non-patient facing role.

·        There are protections around the asking health-based questions during requirement under the Equality Act which may extend to asking about vaccination status.

 

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 in this scenario as staff have autonomy to make decisions about their health – including on vaccinations.
  • A staff member has a legally protected right to decide not to have a vaccination if that is what they want to do. Generally speaking, no one can force you to have medical treatment or vaccinations against your wishes (unless there is reduced capacity). The amendments to the Health and Social Care Act in England (explained in detail above) set out that the obligation to ensure that staff in contact with vulnerable people in certain settings is placed upon the care home/NHS setting.
  • 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. The amendments to the Health and Social Care Act set out that if someone is medically exempt from vaccination, they will not be subject to these amendments.
  • 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 above.

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 above.

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 Human Rights Act ensures that your human rights are protected. However, these protections are not ‘at all costs’, nobody may use their rights to infringe the rights of other people, as set out in Article 17 of the Act. For example, it could be argued that staff in health and care services who, on the basis of their freedom of beliefs, decide not have a Covid-19 vaccination, may pose a real and immediate risk to life of people relying on health and care services, many of whom are medically vulnerable. Such a risk to life could violate patient/service users Article 2 (Right to Life) and Article 3 (Free from Inhuman or Degrading Treatment) rights.
  • If vaccination becomes a condition of your employment, but you feel that your strongly held beliefs stop you from being vaccinated, you may face redeployment, redundancy, or disciplinary proceedings as you may deemed unable to do your job. If this is the case, you may wish to seek advice on employment law.

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 taking disciplinary procedures against 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 considered a range of risk factors (and was 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 has had access to vaccine.
  • 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 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. Remember, the law has changed in England for health and care settings, explained above; this makes it a legal duty to refuse access to the premises for unvaccinated staff.
  • 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 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

·        Pregnancy and maternity

·        Race

·        Religion or belief

·        Sex

·        Sexual orientation

 

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 happens next?

At the time of publication (Dec 2021), Covid-19 has not gone away and there is still a range of guidance and rules in place across the UK to help keep us all safe (and this may be different between different nations in the UK). This is an ever-changing landscape, and often advice and guidance change quickly to reflect infection numbers and risk. The vaccination programme in the UK is continuing, and being expanded upon with the introduction of booster jabs. The vaccination programme runs parallel with the UK Government’s guidance and safety advice. It is important to remember that there is also guidance in place from the devolved governments in Northern Ireland, Scotland, and Wales.

Where can I find more information?

Where can I find more information?

BIHR Vaccine Hub:

https://www.bihr.org.uk/covid-19-vaccine-and-human-rights

BIHR Covid Resources:

The Covid-19 Vaccine and Human Rights: A Short Guide

Easy Read Guide to Coronavirus (Covid-19) Vaccine and Human Rights

Vaccine Passports, Heath Certificates, and Covid Certifications

Blog: 4 Important Cases about the Covid-19 Vaccine

Blog: What does the ECtHR ruling on compulsory vaccination mean in the UK?

 

Other resources:

 

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

UK Government Easy Read Vaccination Guide

Mencap Easy Read Vaccination Information

UK Government Vaccine Guide for Adults (not easy read)

You can find information about supporting people to make vaccine decisions below:

The Down’s Syndrome Association’s Quick Guide ‘Supporting me to make a decision’

Learning Disability England guide to the booster jab (easy read) 

At BIHR, we work with public authorities to develop human rights approaches to better uphold people’s human rights. Public bodies include traditional local and national authorities (councils, NHS, social work teams, etc.) and voluntary groups, not-for-profits and others delivering public services. Find out more about our work with public bodies and how to book bespoke human rights support for your team.