Since the government announced the approval and roll-out of the coronavirus vaccination in the UK, more than 10 million people have received the first dose of the vaccine.
Whilst the various vaccines available have been approved, many remain unable or simply unwilling to be vaccinated.
From an employer’s point of view, this has raised a number of questions about how to tackle staff who won’t get vaccinated. As recently reported in the news, Pimlico Plumbers’ (no strangers to legal wrangles – see https://www.baineswilson.co.uk/news/2302-another-gig-economy-ruling) proposal to introduce a ‘no jab, no job’ policy for its workers might suggest a possible solution, but can vaccinations be made a compulsory condition of employment for staff (both existing and new recruits)?
Currently, there are no statutory provisions that allow employers to force their staff to have the vaccine. There is nothing to prevent an employer encouraging staff to have the vaccine, referring to their health and safety obligations to take reasonable steps to reduce any workplace risks. This is particularly relevant in certain workplace settings, for example those in medical or care settings pose a higher risk than those working in an office. It may therefore be reasonable for employers to require the staff to be vaccinated in order to comply with health and safety legislation.
The problem though, is that some employees may well continue to refuse, leaving employers having to force the issue. Realistically employers would do that in one of three ways:
- Not allowing the unvaccinated employees to work (either paid or unpaid depending on the terms of any contract of employment);
- Taking disciplinary action for a refusal to follow the instruction of getting vaccinated, which could ultimately lead to dismissal if warnings don’t work;
- Terminating employment for Some Other Substantial Reason, namely that their refusal to be vaccinated creates an unacceptable and avoidable risk to colleagues/customers/service users. In other words, a dismissal for health and safety reasons.
None of us really know how Employment Tribunals and then Appeal Tribunals/Courts will deal with this issue, although it’s inevitable that cases will arise from employee’s being dismissed for refusing to get vaccinated. If dismissal is a possibility, an Employment Tribunal will consider whether the employer acted reasonably in all the circumstances, including whether the decision to dismiss fell within a range of reasonable responses. This will be fact specific but will involve an examination of what other COVID measures were in place and whether there were less severe options available to the employer. For workplaces other than medical/care settings who have been managing COVID without the vaccine, dismissal may well be difficult to justify. Note also that none of the vaccines claim to be 100% effective. Discrimination issues could also arise, as discussed in relation to new recruits below.
Implementing a requirement that new recruits have been vaccinated as a condition of employment carries less risk than dismissing existing staff for failing to get vaccinated. It is not without risk though. Pregnant women are currently advised not to have the vaccine and it’s entirely possible that the anti-vaxxers have sufficient cogency/credibility that an Employment Tribunal could find that their belief is worthy of protection as a Protected Characteristic under the Equality Act 2010. The refusal to appoint either opens up claims for indirect discrimination, which can be justified by an employer if their stance on vaccination is a proportionate means of achieving a legitimate aim. The ability to justify the non-employment will again depend on the workplace setting and whether adequate safeguards could otherwise have been implemented (or already existed).
Undoubtedly, there will be workplace settings where mandatory vaccination can be justified and employers will successfully defend claims arising from the dismissal of those who won’t be vaccinated but following through on a Pimlico style approach and dismissing/not employing could backfire.
If you have any queries in relation to any of the issues set out above or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.