For many the rollout of a COVID-19 vaccination programme for all adults is light at the end of a long, dark tunnel. For employers and lawyers, however, there are many legal questions and only a few answers. Set out below are some of the most pressing questions being asked by HR and Diversity & Inclusion practitioners and employees, and where possible some answers.
No jab, no job – can employers insist that employees have the COVID-19 vaccination when it is available?
Employers have a duty under health and safety regulations to take reasonable steps to ensure the health and safety of everyone; employees and customers, clients and service users with whom they interact. Even so a blanket, no jab no job policy risks claims for unfair dismissal and discrimination under the Equality Act 2010 on the grounds of race, gender, religion and belief and disability. The latter could include claims from people who are not hired because they have not had a vaccination.
The UK Government has no plans to make vaccination mandatory not least because as the law currently stands any enforced medical intervention might be a criminal offence (assault & battery), a breach of human rights and a breach of The Public Health (Control of Disease) Act 1984, which specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
That said, COVID-19 is a reportable disease under RIDDOR and having the vaccination can be a means of protecting other staff and or customers, clients, patients and service users.
The Health and Safety at Work Act 1974 also requires the employer to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level and employers have a duty of care to protect employees in both contract and tort law.
Are there people who cannot have a COVID-19 vaccination?
Some people might be advised not to have the vaccination because of a medical condition. Others might have trypanophobia (a fear of needles). Both groups might have claims under the Equality Act 2010 for disability discrimination if, for example, they are threatened with dismissal or not hired because they have not had a vaccination. These employees might be able to return to the workplace, however, if appropriate social distancing measures are in place. See Welcoming Back Disabled Colleagues to the office. Alternatively, it might be a reasonable adjustment to allow them to continue to work from home.
What should employers say to employees who refuse to return to the workplace until everyone they work with has had a COVID-19 vaccination?
As insisting that everyone who works in a particular workplace or for a particular employer has had a COVID-19 vaccination is difficult and legally risky it is likely that employers will have people working for them who have not been vaccinated. Employers cannot give an assurance that everyone has been vaccinated without the explicit consent of everyone who works (or might work) there to their vaccination status being shared. This is because stating that everyone has been vaccinated potentially breaches data protection regulations by divulging sensitive personal data about an employee’s medical history. Publishing lists of who has and who has not been vaccinated (even if an employer could get consent from every employee to do this) is really not a good idea as it is it may well lead to bullying and harassment and damage employee relations.
The best course of action for an employer is to clearly communicate all the COVID-19 safety measures being taken in the workplace to ensure that it is as safe as possible to every worker. Providing accurate information about the spread of COVID-19 will also help reassure workers who might be reading misinformation on social media. If the employee is refusing to come to the workplace until everyone has been vaccinated, then they are likely to have to restrict the rest of their life severely as well as they cannot know the vaccination status of others they might interact with in other situations.
If employees still do not want to return to the workplace and they can do their job from home, the best course of action might be to allow them to do so. If they cannot do all or part of their job from home, then employers could consider redeploying the employee to a job they can do from home or reallocating the duties that cannot be done from home. If this is not possible, then conversations need to take place with the employee that make it clear that there is a risk that they will lose their job if they cannot return to the workplace. As with any dismissal situation legal advice should be sought first as there might be unfair dismissal or discrimination claims that an employee might be able to make in this situation. Employers need to ensure that they have taken all reasonable steps to avoid the dismissal.
Isn’t refusing a vaccination if it is safe a personal choice and one the employee needs to weigh up against losing their job?
Choosing not to have a vaccination might be a personal choice but that doesn’t mean that that choice isn’t protected under the law. Employers should discuss reasons why an individual might choose not to be vaccinated. Employees who might choose not to be vaccinated might include
- People who have an anti-vaccination philosophical belief. This has not yet been tested in court, but such a belief might be protected under the religion and belief provisions of the Equality Act 2010. Vegans might also refuse a vaccination if it contains animal products or has been tested on animals. There is no evidence that this is the case for the COVID-19 vaccinations.
- People whose religion or belief system indicates that they should not. In the past vaccinations have contained meat products that meant that people from Jewish, Muslim and Hindu faiths were not able to take them but all COVID-19 vaccinations available in the UK do not contain meat products. The UK COVID-19 vaccine rollout is endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews. Full information on the ingredients of the Oxford-Astrazeneca, Pfizer-BioNTech and Moderna vaccines can be found on their websites and patient information leaflets. Some people’s faith might also rely only on faith healing and so does not permit medical interventions such as vaccinations.
- Women who are pregnant or planning on getting pregnant. There is no evidence that COVID-19 vaccinations are unsafe, but more evidence is being sought before pregnant women are offered the vaccination. A woman in the early stages of pregnancy or who is planning to get pregnant may not wish to tell their employer about this but if they are treated less favourably or dismissed for refusing to be vaccinated they might have a claim for sex discrimination.
- There is some evidence that people from some ethnic groups are more hesitant about having the vaccination. Employers should not target any communication about vaccinations to these groups or suggest in their communications that they have made assumptions based on ethnicity as this might lead to claims for race discrimination.
Is dismissal for not having a vaccination always an unfair dismissal?
An employee who has two years continuous employment with an employer is likely to have a claim for unfair dismissal if they are dismissed for refusing to be vaccinated in most cases.
To mitigate against such claims, employers must consider alternatives such as allowing the employee to continue to work from home, finding suitable alternative jobs which will enable the employee to work from home and/or take steps to make the workplace safe by implementing social distancing measures.
In some sectors where the health and safety risk to other workers or clients/customers is high, employers might consider dismissal as a last resort if no alternative work can be found for the employee. This might include medical and care settings. In such cases an employee might asserts that the employer is discriminating against them under the Equality Act 2010. There is no need for an employee to have been continuously employed for any period to bring such a claim. To defend the claim successfully the employer will have to show that dismissal was a proportionate means of achieving a legitimate aim. The health and safety of the worker and others is a legitimate aim but proving that dismissal was a proportionate means of achieving that aim might be more difficult. If the employee is disabled then all reasonable adjustments must have been considered and implemented first.
Employers should always seek legal advice before dismissing an employee.
Can we change contracts to insist that employees are vaccinated?
Mandatory vaccination against some diseases is already stipulated in contracts with workers in some professions, for example, dentists. However, these are for vaccinations that are long-established, and the side-effects/long-term effects are well known. This is not the case for the COVID-19 vaccination.
Contracts of employment for new employees could stipulate that they be vaccinated against COVID-19 and existing employees could be asked to agree to a variation of their contract to include such a clause, but these clauses are unlikely to be enforceable. If an employee subsequently refuses to have a vaccination the employer could take disciplinary action against them but in doing so runs the risk of discrimination claims and poor employee engagement and morale.
Can we insist that employees return to the office and so they need to be vaccinated?
Insisting that everyone returns to the office is fraught with legal risk. Disabled employees who asked to work from home prior to the pandemic and were told that it was not a reasonable adjustment, will be able to point to the last year of enforced home working as evidence that it is reasonable. Employers would be wise to take a case by case approach and adopt a hybrid or blended solution and continue to allow employees to continue to work from home if they wish
What about employees who need to travel abroad for their work?
COVID-19 vaccinations might be required by airlines and by countries to which the employee is travelling. If the employee cannot or does not want to have the vaccination, employers need to think of alternatives which might facilitate doing whatever the work abroad was from the employee’s home country. This is far more possible now than it was pre-pandemic and might align better with employer’s policies on sustainability as well.
If travel abroad is essential, then another employee who has been vaccinated might have to take over that part of the role or the person who has not been vaccinated redeployed to a role where travel is not essential. If the employee is disabled, this might well be a reasonable adjustment under the Equality Act 2010.