Employment Solicitor Chris Dobbs outlines some key considerations for employers to try and limit the risk of hybrid working disputes and claims
Can an employer force staff to be vaccinated?
No jab, no job
'No jab, no job’ has been a popular mantra in recent weeks among those who believe that covid-19 vaccinations should be mandatory. Charlie Mullins of Pimlico Plumbers made the headlines in January for his typically controversial take on employee rights by announcing he would require all workers to be vaccinated.
Naturally, unions have responded very differently and are concerned that employers may use intimidation tactics such as this to require the vaccination without giving clear regard to the rights of individual workers.
Downing Street responded with their view on these policies earlier this week with an official spokesperson for the PM announcing that “taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one”. However, it has also been reported that some cabinet ministers believe an employee could legitimately be dismissed for refusing to have the treatment.
So, who is right here and what are the risks involved in a business requiring its staff to have the vaccine?
Can an employer force staff to be vaccinated?
In the sense of physically restraining them and forcibly performing the vaccination, no. Under current UK law, nobody is permitted to force an individual to undergo medical treatment (including having vaccinations) against their will and under existing legislation the Government is also denied that power.
Provisions are in place only for a third party to make that decision where the individual lacks capacity to make it themselves, but this is a complex area of law and is very unlikely to arise in employment situations.
It goes without saying that physically forcing someone to have a vaccine would be a criminal offence.
Employers could have a policy in place requiring every member of staff to have the vaccine. An employer can have a policy in place requiring almost whatever it likes, the real question is whether that policy is lawful, what an employee can do in response and whether the employer would be liable legally.
There are two main areas where dispute is likely to arise. The first is whether refusing to have the vaccine in breach of such a policy would justify dismissal and the second is whether any such policy runs the risk of being discriminatory under the Equality Act.
Can an employee be dismissed if they refuse the COVID vaccine?
Can your employer fire you for not taking a COVID vaccine?
Again, the basic answer to this question is yes. An employer can dismiss an individual for any reason it likes in practice and that dismissal will be effective. This is important to bear in mind if making the decision to refuse the instruction to have the vaccination. The question then arises as to whether that dismissal was lawful or not.
If the employee has under two years’ service then assuming there are no discriminatory aspects to the situation, or anything else which might make the dismissal automatically unfair, there is likely to be no cause of action for the employee in this situation. They will be barred from bringing an unfair dismissal claim.
It may be more problematic for the employer if an individual does have the required length of service. In this situation, the employer will be relying on one of the fair reasons for dismissal in order to prevent a claim for unfair dismissal. The employer will need to approach this carefully in deciding which route to take to ensure that the correct procedure is followed and that their actions can be deemed reasonable.
What is vaccine discrimination?
Discrimination in relation to vaccines comes from the idea that there are circumstances where being required to have the vaccine could fall foul of the Equality Act. It is worth pointing out that simply not wanting vaccines, or not liking the idea of them, is not by itself a protected characteristic; an employee will need to rely on one of the characteristics set out in the Equality Act.
The most likely candidates will be belief and disability.
In all these cases, the claim if one arises will be for indirect discrimination on the basis of one of these characteristics. Direct discrimination is unlikely because an employer is probably not going to require people only of a certain age, race or sex (for example) to have the vaccine. Much more likely is a blanket policy requiring vaccination which may adversely affect people with one of these three characteristics compared to those without.
Is anti-vax a philosophical belief?
There are two possible circumstances here. Religious belief is the first possible example such as a Muslim employee refusing to have a vaccine based on its ingredients. The BIMA has released a statement that the Pfizer vaccine does not contain any products of animal origin.
The second possible scenario is that someone cites their anti-vaccine position as a protected belief for the purposes of the Equality Act. This hasn’t yet been tested though it is worth bearing in mind that climate change, animal welfare rights, anti-hunting and the belief that mediums can communicate with the dead have all been held as worthy of protection. Anti-vaccination, depending on the reasons for it being believed, may well qualify.
You can read Chris' article about veganism as a protected philosophical belief here. It gives some insight into how philosophical beliefs are defined in employment law.
A successful claim on this ground is going to require the very specific circumstances whereby an employee has an existing medical condition which prevents them from having the vaccine. While very unlikely, it is not inconceivable and so employers should be wary of circumstances in which it may occur.
However, in the majority of these cases the primary claim available would be for indirect discrimination. Indirect discrimination can be justified where the employer is taking reasonable steps to achieve a legitimate aim either for their business or more widely. It is not going to be a particularly difficult argument to present a case that the employer’s aim is the prevention of a highly contagious and serious virus within the workforce or client base.
Can you change a contract of employment to require a COVID vaccine?
We would not recommend that vaccination is included in an employment contract either for new staff or as an amendment to existing contracts.
Attempts to change an existing agreement may give rise to breach of contracts claims and it is too questionable as to whether such a provision would even be enforceable. Instead, our suggestion is that vaccinations are introduced by policy or policy statement, as outlined above.
Sector Specific Requirements
Care homes and mandatory staff vaccination
Care homes are one of the most obvious examples where owners and managers are likely to want to require their staff to be vaccinated. There is no special exemption from employment law simply because the nature of the job means that it is more sensible for individual staff to be vaccinated. It is, however, much more likely that a care home is going to be able to justify any policy which is deemed discriminatory due to the increased need on them as a sector to protect both their staff and clients.
Hospitality sector and mandatory staff vaccination
The hospitality sector may also think similarly about their position. I would suggest that the argument here will be less strong than it will be for the care home as the service being provided could be argued as less necessary than the care system. However, any business which is primarily public-facing is going to have a stronger argument for requiring staff to be vaccinated in the interests of protecting health and controlling transmission.
Can you refuse to employ someone if they won’t have the COVID vaccine?
This is going to depend, again, on the reason for their refusal and that is going to be difficult to judge at interview stage.
Can an employer ask whether you have been vaccinated?
An individual who has not had the vaccine for medical or religious reasons could look to make a claim under the Equality Act. Employers must not discriminate in the course of recruitment or advertising. Again, this is likely to be an indirect claim and so the employer will have to be able to justify the policy in order to avoid a successful claim.
If the individual simply does not want the vaccine or has no founded reason for not having it, an employer will be on safer grounds. There is no obligation to hire any given individual for any reason providing the reason is not discriminatory.
Can an employee refuse to work with someone who is not vaccinated?
The dispute here will be concerned with the individual’s health and safety rights at works and whether the employer has complied with its duties.
If any employee is going to take these steps, they will likely be asserting their rights under sections 44 and 100 of the Employment Rights Act. Under these two sections, an employee may look to withdraw from the workplace without suffering any detriment if they genuinely believe there is a serious and imminent danger.
These provisions are not absolute and at the time of writing has not yet been tested in relation to covid-19 itself. The drafting does appear broadly in an employee’s favour and so our advice would be to treat this situation carefully and work on steps which might at least allow the individual to keep working in some capacity. It will be considerably easier and cost-effective to have the individual working in a different room, continuing to work from home or by maintain the current social distancing and workplace guidelines.
Practical advice on workplace vaccinations
Individuals are likely to claim in the current climate if they believe they have been unfairly treated. The job market is not a buoyant one and people who lose their job are going to look to recover their losses if at all possible knowing they are unlikely to find another job quickly.
With that in mind, while the chances of a successful legal claim for a blanket vaccination policy are low, we would recommend avoiding it as an absolute. A policy statement “requiring all employees to participate in the covid-19 vaccination programme” will be controversial, unpopular and does run the risk of individuals looking to claim if they feel victimised by it.
We would suggest a policy of active encouragement in most workplaces and this is likely to be sufficient. Where the business is a more specific role, such as in the care sector, a more carefully worded policy position such as it being an expectation that staff will be vaccinated could be more appropriate. In these cases, employers will want to ensure staff are aware that the approach is subject to the equal opportunities policy and provide a point of contact for staff to speak to in the event of any objections.
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