“No jab, no pay” – a criminal offence

Fiction:

Employers can insist on workers having a vaccine.

Law:

The offence of ‘battery’ is the intentional or reckless infliction of unlawful force. For a doctor, nurse or any person to administer a vaccine without the ‘informed consent’ of the recipient is to commit a criminal offence.  This is likely to be charged as ‘assault and battery’.  A person who intentionally encourages or assists the commission of an offence is themselves guilty of an offence contrary to Section 44 of the Serious Crime Act 1997.  There are a number of employers who might read this article very nervously….

Consent is no defence

In a judgment still binding on Courts throughout the UK, the House of Lords (now the Supreme Court) held that where people commit violence against each other, even if the violence is in private and by mutual consent, an offence may still be committed. Reasoning that “society is entitled and bound to protect itself against a cult of violence”, the Court held that consent is not a valid defence. (R v Brown [1993] UKHL 19 (11 March 1993)

The facts concerned sadomasochistic practices of a group of men where the least serious offence charged and upheld was assault occasioning Actual Bodily Harm (ABH). ABH is a step up from battery in terms of seriousness. ABH is typically charged for scratches, bruises and bite marks. It may also embrace puncture of the flesh with a needle. Coming forward to 2020 and 2021, it would be difficult to imagine that puncture with a needle and injection of a foreign substance to the body, liable to cause adverse reaction to the recipient, is anything but very serious indeed. 

Informed Consent and Criminality

In the medical context, it has always been essential for someone administering a vaccine to know that the patient is giving their informed consent to receive it. The requirement for informed consent is fundamental to medical practice. (For further information about informed consent, see section 8 of the letter Stop Testing in Schools.)

The criminality arising under threat of ‘no jab no pay’ arises by the following logical steps:

  1. By definition, if agreement is coerced, it is not by consent; if access to the benefits of work is only given in return for consenting to a vaccine, that consent is not free
  2. A nurse giving the vaccine is required to ensure the worker gives informed consent, current at the time of treatment
  3. If a nurse knows that the worker’s consent is not free but is given under threat of ‘no jab no pay’ (or any detriment or bribe), the nurse commits an offence by administering the vaccine
  4. The employer who has encouraged or assisted that offence, by making the threat, or by facilitating (and thereby assisting) the vaccine appointment, is guilty of an offence under Section 44 (and/or section 45 and/or section 46) of the Serious Crime Act 1997

Further, and especially given public debate and publicity on the issue, it offers no defence for medical practices to turn their heads away from the circumstances in which any patient submits to a vaccine. Given the numbers of people being vaccinated, to take for granted that none are under threat, or that those who are will speak up of their own accord, is reckless. They will, after all, have shown submission to the threat just by turning up.

The doctor/nurse is therefore under a positive duty to ensure informed consent is given. That requires taking steps, which should be recorded prior to treatment if they wish to defend themselves against criminal prosecution, to ensure the patient is under no threat of ‘no jab no pay’ or similar. They will be reckless to conduct their practice otherwise.

The Courts can defend the people

We are unaware of this issue of criminality being raised before this post. However, most of us could not have imagined circumstances in which the freedom of society has been taken away by this Government. If ever there was a time for the Courts to exercise common law powers to stop this particular cult of violence, at least against large unwilling sections of the public, surely it is now.

If support were needed for the Courts in stepping up, they may look to Europe. The Right to Privacy under Article 8 of the European Convention on Human Rights (ECHR), which still applies in the UK even after Brexit, includes the right to bodily integrity.

That right is reflected in the recent statement of the Council of Europe, of which the UK is one of 47 member states, whose focus is the promotion of respect for human rights under the ECHR. It reflects the moral compass of the European Union and on 27th January 2021 published and adopted the resolution of its members to:

7.3  with respect to ensuring high vaccine uptake:

7.3.1  ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;

7.3.2  ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated

 

If there is to be any individual freedom left in this country, when asked are the Courts really going to permit coercion to vaccinate through denial of access to work? It is time for a prosecution by the CPS but, if necessary, by private prosecution.

Civil Protection of Employment Rights

If our analysis above is correct, then it also opens up remedy for any worker or applicant for work under threat, regardless of their length of service and without need to rely on disability or inability to have a vaccine. They may not, for example, have unfair dismissal rights before an Employment Tribunal, but they may still apply to the Courts for an injunction to restrain the employer from making any such threats.

Health workers

In passing, the analysis above applies to health workers as it does to anyone else. The argument is also relevant to ‘fairness’ in unfair dismissal claims and, regardless of the views of some legal commentators, any health worker is entitled to ask an Employment Tribunal to demand from the employer evidence as to why, in the particular circumstances of their job and their workplace, a vaccine is needed and has real benefit. Most lawyers seem to have paid little attention to evidence.

Evidence, perhaps, that the vulnerable are already protected, or that a worker has natural T-cell immunity already, or if other measures are available, or if the ‘case’ numbers are so low, or if the risk of adverse effect is comparatively greater than the risk from virus, or if the vaccine may be ineffective against transmission or against newly publicised variants or etc. etc. etc….

When it comes to evidence, scary headlines in mainstream media and press releases from No. 10 ought not to cut the mustard.

Whistleblowing

Any employee who raises the above with their employer and finds themselves subject to dismissed as a result may also be protected under whistleblower legislation and expert legal advice should be sought without delay. In seemingly strong cases, the Employment Tribunal has power to reverse the dismissal provided the application is made within 7 days.

 

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Warning: Law and circumstances can change very quickly.  Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.

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4 thoughts on ““No jab, no pay” – a criminal offence”

  1. Chiroline Morgan

    What about PCR and lateral flow testing. If a health care assistant refuses to carry out testing for themself or to test visitors who visit patients for fear of harming another human being where do they stand. If a company tells visitors as they arrive they need to undergo a lateral flow test before they are permitted to visit a loved one is that legal. This is UK.

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