Should vaccinations be compulsory? Historical approach in SS
I am looking at factors relevant to the issue of whether:
a private sector employer can require its workers / users to be vaccinated as a condition of employment/use of premises or services.
Way back, reg 12(1)(c) of the SS (Unemployment, Sickness & Invalidity Benefit) Regs 1975 SI No 564 provided that a 6 week disqualification from benefit for failure without good cause to attend for or submit oneself to medical or other treatment did not apply ‘to any failure to attend for or to submit to vaccination or inoculation of any kind’.
An equivalent provision was still around in 2015. I haven’t explored earlier than the 1975 Regs, nor later than the 2015 DMG
Does anyone recall any research or parliamentary debates on the issue? Thanks
This is an interesting question. It is much more difficult to research these things without having access to Lexis etc. anymore. Doing the best I can from free sources.
The National Insurance Act 1946 is the earliest reference I can find to the concept that you could be excluded from (at that time) Sickness Benefit on the basis of the refusal of medical treatment. The primary legislation made no specific reference to vaccination but authorised regulations disqualifying claimants who refused to submit to medical treatment. This formulation has then been essentially maintained through to ESA under the Welfare Reform Act 2007 (s18).
The formulation in secondary legislation which excludes vaccines appears to be of a similar vintage. Reg 10(c) of the Unemployment and Sickness Benefit Regulations (Northern Ireland) 1948 (I couldn’t find the E&W version) has the same formulation and it is still there in substance in reg 93 ESA Regs 2013.
I couldn’t find any evidence that the exclusion of vaccines for this purpose was ever discussed in Parliament. The closest I could find is a contribution of Billy Blyton MP making what I suppose is the obvious objection to the principle:
“This Bill states one of the disqualifications to be if a person fails, without good cause, to submit to such medical or other examination or treatment as may be required in accordance with the regulations. I hope that this does not include the question of an operation or an amputation. It may be the doctor may say that an operation will rehabilitate a man. If the man refuses because of the fear of the knife, I claim that we are not entitled to disqualify him because he objects to operation or amputation. A person’s body is inviolable; a man should determine the question of amputation or operation, without any disqualification in relation to his benefit.”
Just collecting together some more links for ease of reference:
Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1975
Reg 157 of the Employment and Support Allowance Regulations 2008
Reg 93 of the Employment and Support Allowance Regulations 2013
Chapter 53 of the DMG (see para 53231)
Chapter U6 of the ADM (see para U6005)
For what it’s worth, the Business Secretary has said that -
While requiring a vaccination may nevertheless be legally possible in some circumstances, refusing services or employment to anyone who is not vaccinated does raise discrimination and other legal issues.’
Care home workers will be required by law to have a Covid-19 jab under a historic legal change agreed by Boris Johnson and Matt Hancock, The Telegraph can reveal.
Leaked details of a paper submitted to the Covid-19 Operations Cabinet sub-committee last week show that the Prime Minister and Health Secretary have requested the change in law.
You might be able to make it legally enforceable in a care home - because there could otherwise be a danger to the residents.
However, with most/all the residents being vaccinated already, that argument likely fails.
Not to mention the amount of virus a (vaccinated) person can carry on their person.
If the government wanted to make meaningful change they would legislate to foster better working conditions for care home staff, reasonably to include a higher standard and time allowance for cleanliness etc.
Is it 80% or 85% of UK care homes who are now owned by what is essentially private equity firms? There is zero incentive to good practice; zero learning and zero possibility of legislation which wouldn’t be lobbied into meaninglessness. The horse has well and truly bolted through this particular stable door.
Compulsory vaccinations appear to have moved a step closer for some workers ...
In a report to the government seen by the Guardian, the Equality and Human Rights Commission admitted that making vaccines compulsory for care home staff would be a “significant departure from current public health policy”.
But they judged that ministers were “right to prioritise protection of the right to life for residents and staff” and said it would be reasonable for care home workers to need a jab “in order to work directly with older and disabled people, subject to some important safeguards”.
Covid vaccinations are to become mandatory for care home staff under plans to be announced by ministers, as they consider extending the move to all NHS staff.
It’s official ...
... new legislation [will] mean from October – subject to Parliamentary approval and a subsequent 16-week grace period – anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have 2 doses of a COVID-19 vaccine unless they have a medical exemption ...
Regulations will be laid before Parliament as secondary legislation at the earliest opportunity. If approved by Parliament, there will be a 16-week grace period from when the regulations are made to when they come into force to enable staff who haven’t been vaccinated to take up the vaccine.
Abigail Holt from Garden Court Chambers has written this useful advice -
Covid vaccination is to be made compulsory for the NHS’s 1.45 million staff in England, despite criticism that forcing frontline personnel to get jabbed is heavy-handed and will lead some to quit.
However, the tough new approach will not come into force until April, after Sajid Javid heeded warnings that introducing it soon could lead to an exodus of staff during the winter, the health service’s busiest time of year.
The High Court has ruled that the double-vaccination rule for care home workers is lawful, Landmark Chambers (who acted for the Secretary of State for Health and Social Care) has reported -
In R (Peters and Findlay) v Secretary of State for Health and Social Care, the High Court has this week rejected a claim brought by three claimants, including care home workers, that regulation 5 was unlawful on the grounds that: (1) it was ultra vires the enabling provision in s.20 of the Health and Social Care Act 2008; (2) the Secretary of State failed to take into account relevant considerations; (3) it breached their Article 8 ECHR rights to bodily integrity; (4) it amounted to unlawful discrimination, contrary to Articles 8 and 14 ECHR because it disproportionately impacted women and those from ethnic minorities; and, (5) it was irrational.
Update: 26 November 2021 - the High Court refused an application for permission to appeal in this case and in a second case brought on the same issue in Peters & Anor, R. (On the Application of) v The Secretary Of State For Health And Social Care & Anor  EWHC 3182[ Edited: 26 Nov 2021 at 03:00 pm by Stuart ]
An interesting briefing from Liberty on this topic: https://www.libertyhumanrights.org.uk/advice_information/coronavirus-vaccinations-can-i-be-forced-to-get-the-vaccine/