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“No jab, no job” – A viable approach for employers or a recipe for litigation?

Could employers secure their premises further by making it mandatory for employees to receive the COVID-19 jab?

The COVID-19 pandemic has caused upheaval for employers nationwide, be it through forced shutdowns, social distancing measures, staff members self-isolating/reporting sick, or a mixture of all three. Understandably, many employers are keen for their operations to return to a state of normality and it is hoped that workplace testing (see our update Testing times: can an employer require workers to undertake mandatory COVID-19 tests?) and the continued roll-out of the national vaccination programme will be helpful in achieving this.

Increasingly, employers are looking to find ways to enhance the “COVID-security” of their premises and working environments in order to accelerate the transition back to some form of normality. One of those employers is Pimlico Plumbers who have been widely reported in the national Press as having said that they will introduce ‘no jab, no job’ policy, requiring all workers to be vaccinated against COVID-19.

Can employers compel their employees to be vaccinated?

At present, vaccination against COVID-19 is not mandatory and employers have no freestanding legal right to compel workers to be vaccinated. Guidance from ACAS instead states that you should support staff who wish to have the vaccine and should listen to their concerns and maintain good communication if they refuse.

One potential angle open to employers is to rely on the Health and Safety at Work Act 1974 which imposes a duty of care on employers and an obligation to make workplaces as safe as reasonably possible, and a duty upon employees to cooperate in achieving that objective. Therefore, an employer requiring its workforce to have the vaccination could argue that they have issued a “reasonable management instruction” pursuant to their obligation to minimise risk within the workplace. Failure to follow a reasonable management instruction could be managed and escalated as a disciplinary matter.

However, the effectiveness of this justification will likely depend on the type of work done by the employer and the services it provides. For example, a mandatory vaccination policy is more likely to be considered reasonable by an employment tribunal if it is issued by an employer in the medical intervention/care sectors or in businesses where employees are required to work in confined areas that cannot practicably be made COVID-secure. By contrast, compulsory vaccination is more likely to be deemed unreasonable if it is imposed on employees who can readily do their work from home or can observe reliable social distancing guidelines in the workplace with little difficulty.

At the very least, it is our view that it would be sensible for employers to positively encourage all staff to take up the vaccine, not least because there appears to be mounting evidence that vaccinations can also assist in reducing transmission as well as reducing risk of serious ill health and/or fatality.   This will no doubt add to any business case seeking to justify a requirement to have a vaccine.

Would a mandatory vaccination policy present a litigation risk to employers?

Almost certainly. Whilst the issue has not yet been tested in the employment tribunals, you should exercise caution when considering the implementation of a mandatory vaccination policy as there are many reasons why a worker may refuse to be vaccinated. Some examples of potential claims are listed below:

1. Disability discrimination

It is possible that some workers may have health conditions such as severe allergies or compromised immune systems that are likely to amount to a disability for the purposes of the Equality Act 2010. In such cases, a mandatory vaccination policy could amount to indirect disability discrimination. Any dismissal or detrimental treatment for refusing to be vaccinated is likely to amount to disability discrimination. Medical evidence and opinion will need to be explored wherever this arises.

2. Sex & maternity discrimination

At present, pregnant women and those planning a pregnancy within the next three months are not advised to have the COVID-19 vaccine unless they are also part of a high-risk group. An attempt by an employer to force  women in this category to have the COVID-19 vaccine could also lead to a successful claim of sex and/or pregnancy related discrimination.

3. Religious discrimination

Some employees’ religious beliefs may preclude them from receiving the vaccine. For example, certain types of the vaccine may not be halal or kosher, causing  difficulty for some Muslim and Jewish workers. A policy which compels any such workers to have the vaccine therefore places employers at risk of  claims of discrimination on the grounds of religion or belief.

Remember, none of the aforementioned claims have a qualifying period of employment requirement and are ‘day one’ rights.

4. Unfair dismissal

In order to bring a successful claim for ‘normal’ unfair dismissal, an employee needs to have at least two years’ continuous service (but this qualifying service requirement does not apply to all unfair dismissal claims, such as those related to health and safety). Put simply, in a ‘normal’ unfair dismissal claim the affected employee would need to show that the decision to dismiss them for refusing to be vaccinated was unreasonable in all of the circumstances of the case to win their claim.

Therefore, unless vaccination of all employees is ‘mission critical’ to the successful running or COVID-security of your workplace, as with the examples of employers within the healthcare sector above, any dismissal of an employee for refusing to be vaccinated is potentially unfair on the grounds that it falls outside the ‘band of reasonable responses’ open to an employer. Any employer considering dismissal should first consider what the alternatives to dismissal are, for example, carrying out a different role from home, and seek legal advice before making any decisions.

5. Human Rights

Outside of the ‘usual’ employment law claims, human rights legislation provides that individuals have a right to private and family life. Depending on the circumstances, employment tribunals may take a dim view of employers that seek to force their employees to undergo a medical procedure, if there are not compelling reasons to do so.   

GDPR issues

As ever, employers need to be mindful of data protection issues. Processing of an employee’s health data, including records of COVID-19 vaccination, would amount to “special category data” under GDPR. Employers would therefore be under a legal obligation to ensure that any such data is lawfully processed.

Whilst the desire to accelerate a return to some semblance of normality is understandable, you should exercise caution and seek legal advice when considering the introduction of a mandatory vaccination policy. Unless the working environment dictates that it is ‘mission critical’ for workers to be vaccinated, such as is more likely to be the case in a healthcare setting, there is a real risk that any disciplinary action and/or dismissals of employees who refuse to be vaccinated will be both unfair and potentially discriminatory.

This is not to discourage all employers from engaging in a positive dialogue with the workforce to encourage take-up of the vaccination. That is entirely consistent with the Government’s wider public health message.

Read our latest insight “No jab, no job” – further developments and related matters

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