So, following a vote last month in the Commons, it looks like the road ahead for all NHS staff is paved with mandatory vaccinations.
This is of course not what one would expect in a free democratic society, but what arguments could be used in a court of law to challenge the requirements? Notwithstanding the breadth of English common law, there are several statutes and principles which form a basis for illegality of these vile mandates.
The following codified principles of freedom should be crafted on the soul of our goblinesque Health Secretary: (i) medical and bodily autonomy, (ii) right to privacy, (iii) employment law considerations and (iv) protection from discrimination. A fifth ,and final principle, is found in the overarching framework of a basic human right to equal treatment with one’s fellow citizens.
1. Medical and Bodily Autonomy
Section 45E of the Public Health (Control of Disease Act) 1984 prohibits requiring an individual to undergo medical treatment, including vaccination. So the new rules for NHS staff will be in direct contravention of that Act, as are the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 imposing mandatory vaccination on employees of Care Quality Commission (or CQC) registered care homes.
2. Right to Privacy
Individual privacy is enshrined in the Data Protection Act 2018 which regulates the rights of living humans concerning collection, processing, storage, sharing and handling of their personal data.
The law even has a ‘right to be forgotten’, which facilitates requests for the deletion of personal information that is not permitted to be retained without a compelling reason. Data concerning a person’s medical status is one of those particularly sensitive categories of personal information subject to heightened scrutiny.
The Information Commissioner’s Office (ICO) which regulates personal privacy in the United Kingdom has classed Covid status as ‘special category’ data. Such an intrusion into this area of a person’s life therefore requires a weighing of the risks to balance (in this case) the public interest against the substantial distress and damage inflicted on the subject whose medical data is sought, and establishment of an Appropriate Policy Document (APD).
It is clear from the perspective of privacy risk assessment that the Government adopted a rushed approach to introducing the vaccine mandates for care workers and NHS staff. In an attempt to create a type of APD which falls pitifully short of required public policy standards, the Government published, a Response to public consultation, on 9th November 2021 entitled ‘Making vaccination a condition of deployment in health and wider social care sector’.
This was just two days before the shamefully timed sacking of unjabbed care workers on Remembrance Day.
The sole point repeatedly hammered home on almost every page of the Response document was that the vaccine mandates were necessary to protect the vulnerable receiving care. But there is no evidence that Covid vaccines prevent the spread of the virus. It has been established that the double jabbed are not only catching the disease through ‘breakthrough’ infections but can just as easily pass it on as the unvaccinated.
Therefore this flimsy justification for requiring a non-consensual medical intervention must be rejected as outweighed by each NHS and CQC worker’s individual right to maintain their own bodily integrity.
Suffice to say that absent a stronger justification grounded in proven facts, rather than hypotheses, requiring an individual to reveal their medical data and submit to an invasive medical procedure in order to keep their job constitutes a gross violation of their privacy and fundamental dignity as a human being.
3. Employment Rights
The Employment Rights Act of 1996 protects employees from unfair dismissal by enabling claims against employers who sack them under certain circumstances. The counter-argument put forth in such cases by employers will be that the dismissal was fair and they acted reasonably.
The Government guidance on claims for unfair dismissal states that an employee may be legitimately dismissed for failing to meet a legal requirement imposed on their job function. But for the scenario of a mandatory medical intervention without consent, which is itself illegal, there should certainly be a question mark hanging over any related dismissal.
This is in a way analogous to the high profile (pun intended) lawsuit brought several years ago by a woman who was forced to wear stilettos at work. Arguably in certain professions this type of footwear could be justifiably considered relevant to the job description, but dismissing someone for failing to comply is nevertheless cruel and downright inhumane, not to mention misogynistic.
Equally requiring NHS staff to submit to forced inoculations is nasty and sadistic. The lady in heels can take her shoes off when she leaves the office. The one who has been jabbed has to live with the consequences for the rest of her life, at home and on the job.
Sitting underneath the Employment Rights Act would be each NHS and CQC worker’s employment agreement. The employee who is dismissed for failing to get vaccinated could have a claim for breach of contract. Add to that discrimination under the next statute and a violation of the right to equal treatment under the law as compared with individuals who do not have to disclose their Covid status or submit to vaccine mandates.
4. Equality Act
The Equality Act 2010 enshrines the rights of people to be free from discriminatory treatment on the basis of certain protected characteristics, such as age, disability, sex, race or religious beliefs. One way this is impacted by vaccination requirements in the workplace is for women of childbearing age.
These women may view the risks to their fertility from Covid vaccines that are still in the trial phase as a showstopper. The Equality Act would also protect someone who objects to being injected on the basis of religious beliefs or, as has been successfully argued, lifestyle choices such as veganism.
The Equality Act addresses not only direct discrimination but also situations where the effect of a policy is to indirectly disadvantage persons in a protected class. As certain racial groups are less likely to get vaccinated, for example, an effect of the mandates includes disproportionate discrimination toward such persons and hence carries a violation of the Equality Act.
5. Equal Treatment
A final strand of law to consider is the right of every individual to be treated equally under the law.
It’s a basic human freedom, and is addressed by Article 7 of the Universal Declaration of Human Rights which states: ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination’.
It is interesting in this context that Freedom of Information (FOI) requests to the UK House of Commons, Northern Ireland Assembly, Welsh Parliament and Scottish Parliament for data on the number of elected members having received one or both doses of the Covid vaccine have all been summarily rejected.
The reasoning behind said refusals is that such information is not collected or maintained and remains private personal data of the MP’s pursuant to the ICO’s guidance on Personal Information (section 40 and regulation 13) for Freedom of Information Act requests.
If MP’s bearing a duty to the public don’t have to share their Covid vaccination status, why would they think it acceptable to demand that from anybody else? Under the law we are all equal. In the words of Justice Lady Hale, ‘Equality before the law is a fundamental principle of the rule of law as we know it.
Everyone is subject to the same laws, no matter who they are, and is treated equally by the courts’.
The vaccine mandates for NHS and CQC staff must therefore be struck down as violative of the statutory rights, rule of law and freedoms underpinning our democracy. They should be rejected as barbaric, cruel and authoritarian with no legitimate place in a civilized society.
This piece was also published on SUBSTACK