Today’s news that the first doses of the COVID-19 vaccination are being administered on what the Government is calling “V-Day” has been welcomed by most of the population. However, there remain concerns amongst some about the speed at which the vaccines have been developed. A recent survey has reported that around a third of UK citizens would be reluctant to receive the vaccine for various reasons including the potential unknown, long-term side-effects.
Employers are eager to get back to the “old normal” as soon as possible. The key to doing so will be widespread vaccinations. However, the question of whether an employer can legally force staff to get vaccinated raises many legal and moral questions.
Can an employer make vaccination compulsory?
In short, probably not. Companies have a legal obligation to ensure that the workplace is safe for all employees. Arguably, that could include ensuring that staff are not placed at risk by working alongside colleagues who have not received the vaccine.
However, unlike Denmark and some US states, the UK Government has confirmed that it has no intention of making vaccination compulsory. It is not currently possible to compel someone in the UK to have a vaccination against their will. Businesses will therefore have no legal right to force employees to receive it and so would be required to treat it as a “reasonable management instruction” or to make it a contractual obligation (which, for existing staff, would likely still require their consent). Both steps would likely be met by resistance as this would be a draconian requirement.
Can an employer dismiss an employee who refuses to be vaccinated?
It has been widely reported that Australian airline Qantas will insist that all passengers must provide proof of vaccination before being eligible to fly with them. The justification is the protection of their other passengers and crew. It remains to be seen if other service providers will adopt the same approach.
If employers wish to justify a policy of mandatory employee vaccines, they should consider the basis for this – is it to protect colleagues and customers? Or is it necessary because the employee needs to travel in their role to countries which require proof of vaccination?
Some employers may make vaccination an occupational requirement to perform a certain role. If an employee refuses, there may be scope to argue that it was a contractual obligation for the employee to perform their role safely or, potentially, that they have refused a reasonable management instruction.
This is arguably foreseeable for professions in clinical environments or in the care sector where employees will have close contact with vulnerable groups. Although it is not even mandatory (other than a few limited exceptions) for front line NHS staff to receive other vaccines and there are no signs yet that the COVID-19 jab will be either. This raises the question as to whether it would really be reasonable for other employers to make vaccination compulsory on health and safety grounds.
Before dismissing an employee for refusing to receive the vaccine, an employer should consider the fair reasons for the dismissal. For example, is the reason capability, a breach of a contractual requirement or a disciplinary matter for failing to follow a reasonable request?
Of course, the employer must first consider whether there are reasonable alternatives to dismissal for that employee. This may include remote or home-working, which is likely to be a prominent feature in the post-COVID economy. Changes to role may also be appropriate. As ever, the circumstances of each case should be considered carefully.
Dismissals or detriments (such as demotion or pay reduction) for refusal to be vaccinated also carries risk of discrimination claims. Some individuals may be reluctant to receive a vaccine due to concerns about other underlying health conditions. If these medical conditions amount to disabilities under the Equality Act then pressurising employees to receive the vaccine could lead to disability discrimination claims.
Some employees may not agree to be vaccinated due to specific religious beliefs that are held by a minority of religious groups.
But what about a philosophical objection to vaccination? In January 2020, an Employment Tribunal held that ethical veganism was a protected philosophical belief in a particular case, and some vegans hold concerns about vaccines due to the traces of animal protein which they often contain. Whether or not being an “anti-vaxxer” could amount to a philosophical belief that is protected from discrimination under the Equality Act 2010 has not yet been debated in the Employment Tribunals. It would need to meet the legal test of being a coherent belief worthy of respect in a democratic society, compatible with human dignity and does not conflict with the rights of others.
What does the future hold?
The UK Government has been clear that the success of the vaccine programme will depend on widespread uptake. It may even encourage employers to promote vaccination of their workforce and assist in the large logistical challenge of arranging vaccine clinics.
In addition to the employment law and healthy and safety issues, organisations should be mindful of the obvious GDPR implications associated with storing health data about which employees have been vaccinated. This is special category data that is subject to additional protections and employers should carry out a data privacy impact assessment before collecting and processing this type of data.
If companies are considering arranging their own mandatory private clinics to inoculate staff, they could potentially be liable if employees do experience adverse side-effects and the vaccine has not been stored or administered in line with public health guidance.
Even if a requirement to be vaccinated, or vaccine-related dismissals, could be legally permissible, these steps could have a negative impact on employee relations. While some people will welcome the knowledge that all their colleagues have been inoculated against the virus, others may understandably take exception to the company’s authoritarian stance.
In light of these various complex issues, most employers may prefer to adopt the safer policy of actively encouraging staff to receive the COVID-19 vaccine, alongside promoting other public health guidance to minimise the spread of infection. This would be akin to the common approach for promoting and facilitating employees to have annual flu jabs. Education and communicating with employees will be key to foster confidence in the vaccine as well as good employee relations. This approach will help avoid the legal and ethical minefield of enforcing vaccinations among an already anxious workforce.