Compulsory vaccinations take NHS into uncharted territory

With Covid jabs seemingly set to become compulsory for NHS staff in England from next April, an employment law barrister is warning that we are now entering unchartered territory.

Changez Khan, who is a member of No5 Barristers’ Chambers, has highlighted the challenges associated with mandatory vaccinations. Instances in France regarding unvaccinated health workers, and indeed closer to home in one NHS Trust in Southampton, illustrate that making jabs compulsory does not result in 100% uptake.

Changez comments: “Employers need to consider the spectrum of reasons as to why someone may remain unvaccinated. For some, there will be legitimate health and ethical reasons which inform their decision, for example, a concern that the vaccine may have side-effects on pregnancy or an underlying disability. That is where the Equality Act 2010 will have a key role to play in defining instances of discrimination.

“Large employers – and there are few bigger than the NHS in England – need to tread very carefully to ensure they are not falling foul of discrimination law. There is very little precedent for this kind of implementation, though it is worth noting a potential case study in the form of compulsory vaccinations in care facilities, which is due to come into force on 11th November. An ongoing legal challenge to this serves as a reminder that a one-size-fits-all approach is fraught with difficulties.”

 The number of NHS staff this will impact is significant, particularly when you consider that if just 5% remain unvaccinated, it would equate to between 50,000 and 100,000 individuals. At a time when the healthcare system is under extreme pressure, evidenced by the recent call for retired employees to return to work, a careful approach is required to avoid exacerbating the issue.

Changez continues: “The NHS will be eager to avoid disruption. Even in April, when seasonal pressures on the system are easing, there is the backlog of operations that will need to be addressed. This is where the phrase ‘redeployment’ needs greater clarity. If frontline workers who refuse the vaccine are set to be ‘redeployed’, what does this mean for a nurse or a surgeon?

“The priority must always be the health and safety of patients – that is the primary function of the NHS. It is a challenging balancing act, and one which poses the question of whether or not vaccine refusal should cost an individual their livelihood. It is critical that employers are careful not to find themselves in breach of the Equality Act 2010.”

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