As the vaccination roll-out continues across the UK, with more than 22 million people to date having received at least one dose of the vaccine, CEOs and leaders are increasingly asking questions surrounding the hot topic of mandatory vaccination. Tim Hayes, legal director, and Larissa Hawkins, trainee solicitor at BDB Pitmans, explore the topic of mandatory vaccination.
A narrated version of this blog is available at the bottom of the page
Can employers require mandatory vaccination of their employees?
This question has recently been propelled into the headlines following a recent announcement from Charlie Mullins, chair of Pimlico Plumbers, that the company intends to introduce a “no jab, no job” policy of mandatory vaccinations by drafting new employment contracts to include a vaccination requirement. This view is not uncommon amongst those in management roles, with a recent survey suggesting that around a quarter of employers intend to make vaccination of their staff a compulsory requirement, and around half of chief executives confirming they will prioritise vaccinated applicants for recruitment purposes.
However, employers need to adopt such an approach with a heavy dose of caution. Current Acas guidance advises employers to support staff and encourage employees to be vaccinated without making vaccination a mandatory requirement.
The government has not legislated for mandatory vaccination. The Public Health (Control of Disease) Act 1984, enables the government to make regulations to prevent, protect against or provide a public health response in respect of infection or contamination in England and Wales, although such regulations cannot specifically require a person to undergo vaccination. In the absence of such a legal obligation or a contractual obligation, an employer cannot mandate vaccination without employees’ consent.
There is growing debate about whether the position differs for healthcare staff and other employees in close contact with vulnerable persons in the public domain. This is likely to depend on the circumstances and requirements of a particular role. An employer’s assertion that their employees must be vaccinated could be viewed as a ‘reasonable instruction’ from the employer, on the basis that it is intended to protect the health and safety of fellow employees and others. This argument might not be so robust in office-based sectors, especially where an employee can demonstrate they can work effectively from home or carry out their role remotely.
Employers should keep the principle of proportionality in mind and consider alternative measures, such as:
- Regular reviews of health and safety and COVID-secure guidelines relevant to the industry;
- Regular COVID testing;
- Allowing employees to work from home if possible;
- Changing the employee’s role/responsibilities to minimise risk.
Can an employer fairly dismiss an employee who refuses to have the vaccine?
An employee’s failure to follow a reasonable instruction could lead to a fair dismissal by the employer, most likely by way of a ‘dismissal for some other substantial reason’ (SOSR).
This is most likely to arise in the following circumstances:
- An employee refuses to accept a change to terms & conditions;
- The employer experiences reputational risk;
- Pressure from third parties; or
- A breakdown in mutual trust and confidence between the employer and employee.
The employee can only be fairly dismissed if they unreasonably refuse to be vaccinated which is of course where the grey area is. The employee should be given the opportunity to set out their reasons for refusing the vaccination, and employers should then consider those reasons carefully before reaching a decision.
What are the potential discrimination-related issues that could arise?
If an employer chooses to mandate vaccination of every employee, any differentiation in treatment of staff who have or have not been vaccinated could lead to claims of indirect discrimination. A requirement for all employees to be vaccinated is a ‘PCP’, i.e. a provision, criterion or practice that could potentially put individuals with a protected characteristic at a particular disadvantage when compared to those who do not share that protected characteristic.
Mandatory vaccination must be justifiable by the employer as a proportionate means of achieving a legitimate aim and those measures ‘reasonably necessary’ to achieve the legitimate aim, where no alternative course of action is available.
The following protected characteristics present a few common areas of concern:
|Age||With the vaccine rollout in the UK being based predominantly on age, there are risks surrounding employers requesting older employees to return to the workplace earlier than unvaccinated employees, or that younger employees are forced to return to workplaces before being offered the vaccine.|
|Pregnancy or Sex||Under current UK Government guidance, the vaccine is not recommended for those who are currently pregnant, breastfeeding or trying to get pregnant.|
|Disability||Medical practitioners advise certain individuals not to be vaccinated due to particular medical conditions, e.g. suppressed immune systems or severe allergies. An employer questioning an employee’s reasons for not being vaccinated may put the employer on notice of the disability. Employers should make reasonable adjustments where required and encourage a positive discussion surrounding the needs of their staff.|
|Religion and Belief||Employees who are ‘anti-vax’. In employment law, a belief is a “philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour”. The belief must be worthy of respect in a democratic society, and not affect other people’s fundamental rights. This is an ever-evolving category, although it is probably unlikely that an anti-vax viewpoint would qualify as a protected belief.|
With the ongoing roll-out of vaccinations, this is of course a constantly-developing area of law that will have to be very carefully navigated by leaders of voluntary organisations as the sector journeys towards a ‘new normal’.
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