Welcomed by many, the Coronavirus vaccine is now being rapidly rolled out across the UK. For a while, many recipients won’t be of typical working age. However, as the wider working population begins to be offered the vaccine, this will throw up issues for employers and employees.
Employers are likely to be in favour of all their employees being vaccinated, but not all employees will be as keen. There will be workers who are concerned about the vaccine and would prefer not to have it, for various reasons. What happens in this situation? Can an employer (or indeed the Government) force them to have the vaccine? Is the “No jab, no job” threat a hollow one or does it have teeth? This blog explores that scenario.
The government have specifically advised that certain groups of individuals should get the vaccine, such as if you are a frontline healthcare worker, frontline social care worker, or work in a care home for the elderly for example. These recommendations may be relied upon by employers to justify why they would want their employees to have the vaccine.
Acas guidance suggests that employers should support staff in getting the vaccine but cannot force them to be vaccinated. However, it does acknowledge that it may be necessary to make vaccination mandatory in some job roles, such as where someone needs to travel overseas to do their job.
Employers can’t rely on the Government making vaccination compulsory. Despite some rumours circulating on social media, the Government has no legal powers to do this and has stated they have no intention in making it compulsory. Therefore this is likely to be a question assessed on a case by case basis, is there a legitimate reason your employer is requesting that you have the vaccine, or do you have a legitimate reason why you are refusing?
It will be up to individual employers to decide whether they insist on vaccination, and what the consequences of refusal will be. For anybody having visions of their employer physically forcing a needle into their arm, this is not the type of force envisaged here. That would be a criminal offence (battery). The kind of force the employer might apply is forcing the employee into a difficult choice – have the vaccine or complete restricted duties, or in a worst-case scenario, be dismissed. Can the employer do this? The answer is yes. There is nothing an employee can do in most circumstances to stop an employer from dismissing them, for whatever reason. The next crucial question then, is what can the employee do about that? The employee would potentially have a claim to an employment tribunal against the employer for unfair dismissal.
Employees with less than 2 years’ service will not have any right to make a claim if they are dismissed for refusing the vaccine (except in some very limited circumstances). For employees with 2 years’ service, they could make a claim, and a tribunal would have to decide whether the dismissal was unreasonable. Such a decision by an employer could well be found unreasonable:
- Essentially, it is a way of forcing the employee to have the vaccine, but which falls short of forcing a needle into their arm, which a tribunal might struggle to justify
- it is potentially in breach of Article 8 of the Human Rights Act and
- vaccine refusers may have genuine and reasonable fears about receiving the vaccine.
Of course, this does not prevent the employee from being dismissed in the first place. A tribunal claim is an imperfect remedy that will take a long time, will not result in immediate reinstatement, and will not result in a windfall settlement for the employee.
Being worried about having the vaccine is not a protected characteristic in itself, but if the employee’s reasons for not taking it are related to a disability, or for example, to their religion and belief, that might give rise to a claim that they have been treated less favourably because of their refusal. Therefore, in some circumstances it may be possible to bring a claim against your employer for discrimination under the Equality Act 2010.
Of course, there are some circumstances where having the vaccine would not be suitable and those individuals will be able to present that specific reason to their employer.
The question of whether the employer’s actions are reasonable also depends of course, on the type of employer it is and whether they require their staff to be vaccinated as a legitimate aim within their business. If it is healthcare, or another type of job involving vulnerable clients or patients, that might be more reasonable. That could be extended to personal care roles which involve close contact, such as hairdressing or beauty treatments, and a tribunal might find it reasonable to require those staff to be vaccinated. The question then is, how far does that extend? To those serving the public, for example in retail, or in hospitality? To put themselves in a stronger position, employers should be looking at what alternative roles they can offer refusing employees, before dismissing them.
Employers may want to consider alternatives to mandatory vaccinations such as regular testing or regular health and safety reviews to ensure that they are up to date with, and properly implanting COVID secure guidelines.
It is also recommended that employees and employers communicate, and provide reason and explanation as to why you either do not wish to have the vaccine or why as an employer you feel it is a necessary request to ask of your workforce. It will be a while until this is tested in the tribunals, and each case is going to depend very much on individual facts.
Employers planning on imposing mandatory vaccinations within their workplace should consider the following;
- there are a number of potential reasons why mandatory vaccinations could be indirectly discriminatory against certain protected characteristics.
- Currently, vaccinations are not available for everyone. All individuals must wait their turn in order of priority to be offered vaccination. Only allowing vaccinated individuals to return to the workplace, for example, could amount to indirect age discrimination amongst other risks.
- This could result in negative publicity for the employer
- Consultations with workplace health and safety representatives may be advisable
- There are data protection implications of requiring employees to provide information on their vaccination status and verifying its accuracy.
For more information on Covid and the workplace, why not join us at our free virtual workshops, held every 2 weeks over the next few months, we will be answering some of the many questions around this area of law. To book see here.