Can employers insist that employees have the Covid vaccine?

Clearly the rollout of the coronavirus vaccine is great news, and the government should be proud of their efforts ensuring that the UK’s programme is one of the best in the world. Let’s hope it isn’t derailed by our European friends’ threats of protectionism and export bans which are wrong on so many levels in my opinion. 

Although we’ve had great success, there does seem to be significant resistance to vaccination from certain sections of society whether it be due to misinformation, distrust of the system or believing some of the ridiculous conspiracy theories that are doing the rounds.

So whereas we are on track for an excellent result it does seem that significant numbers of people in the UK will choose not to be vaccinated. In this article we will look at the implications for employers of this, and what actions they can take.

As well as those who choose not to be vaccinated there are other genuine cases of people who won’t receive the vaccine any time soon and these individuals will need to be supported and wherever possible shielded as they are in that situation through no fault of their own. This mainly applies to those who are pregnant or have medical conditions that mean they cannot safely be vaccinated.

For those that choose not to be vaccinated the law is on their side to some degree as any medical intervention in the UK requires the individual’s consent so neither employers nor the government can force employees to be vaccinated. If it tried, that is likely to be classed as a breach of their human rights and possibly even assault. So the only option open to employers seems to be dismissal of those who refuse.

This blog considers the vaccination issues regarding pregnant employees, those with medical conditions that means they should not be vaccinated, and then those employees who choose not to be vaccinated. Then we discuss the circumstances where dismissal for employees who are either unable or unwilling to be vaccinated are likely to be safe or not.

Pregnant employees

The vaccine has not yet been fully tested on pregnant women so the current medical advice is that they should not be vaccinated. Pregnancy is a ‘protected characteristic’ under the Equality Act 2010, meaning it is unlawful to discriminate against pregnant employees due to an issue connected to their pregnancy, either directly or indirectly.

There also seems to be reluctance from individuals who, whilst not currently pregnant, may wish to start a family in the near future. Their hesitancy is understandable but their case is less strong legally. ‘Planning’ a family is not a protected characteristic under the Act so any discrimination claim would almost certainly fail.

Employers cannot be expected to accept disruption and extra cost due to something that may or may not happen in the coming months and years, so there may be some difficult decisions ahead for individuals in this situation if the employer decides all employees need to be vaccinated. The employer should clearly follow a compassionate and supportive approach wherever possible but it seems that for most companies alternative options to dismissal are very limited.

Employees with medical conditions

Employees with certain medical conditions have been advised not to have the vaccine. Many of these conditions will be classed as disabilities under the Equality Act and, like pregnancy, disability is a protected characteristic so dismissal of such employees who refuse to be vaccinated risks losing a tribunal for discrimination unless the employer can show that vaccination of employees is a ‘genuine occupational requirement’. More on this later.

if the individual cannot work from home and the employer cannot make other ‘reasonable adjustments’ to accommodate the employees’ needs it will lead to a very sad and tricky situation, and employers should take advice before acting. Hopefully there will not be many of these tragic cases.

Employees who choose not to be vaccinated

Reports suggest there is a significant minority in the UK who have decided not to be vaccinated, as is their right.

We cannot compel individuals to have the vaccine and, in fact, doing so would likely be deemed to be assault. Although it may reduce deaths, compulsory vaccination for all would be an affront to the freedoms that we have worked so hard to protect over the centuries.

But those who choose not to be vaccinated will not receive the same protection in employment law as pregnant employees and people with medical conditions and will need to accept the consequences of their decision.

However, individuals who are dismissed for refusing to be vaccinated where an organisation has a policy that all must be vaccinated, may be able to claim for discrimination at tribunal.

So called anti-vaxers may be able to claim that they have a protected characteristic under the Equality Act due to ‘religion or belief’. I appreciate that is a slightly bizarre statement but bear with me, as the bar regarding discrimination for your beliefs is lower than you would think. Cases hinge on how individuals live their life and the principles and values they uphold and this is not limited to an individual’s faith. You may remember the case a couple of years ago where a vegan successfully argued they were discriminated against due to their veganism as the beliefs they held as a strict vegan fitted the description of a ‘belief’ under the Act. Similarly, if an anti-vaxer can successfully show that a major part of their life hinges around their values regarding the perils of vaccinations i.e. their ‘belief’, they may have a case.

Conversely, although anti-vaccination beliefs are yet to be tested at tribunal and may constitute a protected characteristic, where an employer can show they have a genuine need for all employees to be vaccinated e.g. for public health reasons they are likely to be able to rely on the defence of the vaccine being a ‘genuine occupational requirement’ and therefore be able to successfully defend any such discrimination claims.

The best way to explain a genuine occupational requirement is through the very well known tribunal case involving British Airways a few years ago, who had a requirement for all cabin crew to be over a certain height. Claimants with heritage from areas of the world where the population is on average shorter than in the UK made a claim that BA’s policy indirectly discriminated against them as it was applying a ‘provision or practice’ that was harder for them to comply with than the white UK population. They were correct that this BA policy racially discriminated against them but BA won the case as they argued that there was a ‘genuine occupational requirement’ for cabin crew to be over a certain height as that is the height needed to be able to reach equipment at the back of the overhead lockers in the event of an emergency.

The legal test for a genuine occupational requirement to be valid is whether it can be shown to a be a ‘proportionate means of achieving a legitimate aim’, and BA’s legitimate aim was the safety of passengers. Similarly, if employers can prove that there is a clear risk that non vaccinated staff may cause a Health and Safety issue they may be justified in discriminating against those employees who refuse to be vaccinated as compulsory vaccination of employees would be a proportionate means of achieving the legitimate aim of protecting the health of staff, customers, patients etc and therefore would be a genuine occupational requirement.

Dismissals for non compliance

Where the employer can show there is a genuine need for its employees to be vaccinated and brings in such a policy the consequences of not complying with the policy need to be made clear. The consequences are likely to be disciplinary warnings and ultimately dismissal if the individual continues to refuse to be vaccinated.

In addition to potential claims for discrimination at tribunal as covered above, any employee with two or more years’ service can also claim unfair dismissal at tribunal. Whether their claim is successful or not will depend on whether there was a fair reason for dismissal, and whether dismissal of the employee fell within the ‘range of reasonable responses’ open to the employer in the circumstances. 

The employer would need to show that dismissal was a reasonable response to the individual’s refusal to be vaccinated and show that they considered whether any alternative actions could have been taken such as the employee working from home, or moving the individual to another role, department or site that does not require vaccination. If they can show that they have considered such alternatives then dismissal is likely to be justified.

In addition to unfair dismissal, organisations need to also be wary of claims for constructive dismissal. Most employers don’t know the difference between ‘unfair’ and ‘constructive’ dismissal and I won’t bore you with the definitions here but every employee has an implied term in their employment contract of ‘mutual trust and confidence’ and if this is breached it enables them to resign and claim constructive dismissal. It is likely that employees will try and claim that an employer trying to force them to be vaccinated against their will and against their beliefs breaches this contractual term.

Clearly employers will need to be patient with employees who haven’t been able to have the vaccine yet e.g. the under forties and not treat them less favourably for a matter that is out of their control. If they are treated less favourably then it would not be difficult for them to complain that their treatment was due to their age and be able to compare themselves to employees aged over 50 and successfully claim age discrimination in addition to unfair dismissal.

Employers will also need to be patient with employees who remain cautious for a few weeks after vaccination as it is known to take several weeks before individuals receive the full benefits. This is especially the case regarding returning employees who have been shielding.

So what’s the bottom line, can we require employees to be vaccinated?

The huge positive of the vaccine programme is that it should enable employers to return to something approaching ‘normal’ even if there will continue to be social distancing and face mask requirements for some time yet. Many employers will therefore want to require their employees to be vaccinated.

Whether this will be legally acceptable is likely to depend on the employer’s circumstances and whether they can justify their decision. As explained above, even individuals who are not pregnant or have a medical reason not to be vaccinated may be protected unless the organisation has a genuine occupational requirement for their employees to be vaccinated. The main justification for dismissal is likely to be on Health and Safety grounds

Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practicable steps to ensure the health, safety and welfare of their staff.

Where a health and safety risk assessment shows that employees, customers and the general public are likely to be at increased risk if all employees at an organisation are not vaccinated it is likely that such a requirement will be justified so in these circumstances the answer is yes, you can require employees to be vaccinated.

However, if the risk assessment does not show clear justification for insisting on employees being vaccinated then employers are likely to lose tribunals for the reasons explained above so should avoid having a policy that all employees must be vaccinated.

On 23 March 2021, Health Secretary Matt Hancock confirmed that the government are considering introducing mandatory vaccine requirements for care home staff, however it is currently not confirmed when this would come into effect. Clearly this gives some much needed clarity for the care home sector, and organisations with similar risks to care homes from non vaccinated staff should be able to proceed with a policy of compulsory vaccination more confidently.

In summary, where there is a clear link to the health of staff, customers and visitors a compulsory vaccination decision is likely to be justified and defensible, however it is unlikely that the vast majority of employers will be able to justify requiring employees to have the vaccine as they will not be able to show a clear enough link to the health risks if their employees are not vaccinated. 

Actions for Employers

The first action for employers will be to undertake a thorough risk assessment and then make a decision as to whether to make vaccination compulsory for employees.

Employers should then update their Covid policy, or devise one if needed.

The next step where the company has decided to make vaccination compulsory will be to identify which employees have a justifiable reason for not being vaccinated, along with those who refuse to be vaccinated.

The employer should then meet with those employees who have a valid reason to refuse vaccination to discuss what changes, if any, can be made so they can continue in their role such as working from home or moving to a different role or site that does not require vaccination. This conversation will be easier with pregnant employees as clearly there is a finite timescale during which allowances will need to be made. However for those with long term medical conditions it is likely to be trickier, especially where no alternatives to dismissal can be found.

For pregnant employees, if a safe alternative to attending work cannot be found the employer must legally give paid leave until either the individual’s maternity leave starts or a safe alternative becomes available in the future. The employer may wish to also consider this for those employees with a medical condition that is only likely to be short or medium term but that is not a legal requirement.

The employer should also meet with those employees who it does not deem to have a valid reason for refusing vaccination to see what their reasons are. They may be in the early stages of pregnancy but not wish to inform the employer yet, or they may have a disability that they do not wish to divulge. If that is not the case the employer should do all it can to reassure the employees about the vaccine. According to CIPD the following are worth considering:

• providing information to allow employees to make an informed decision about the vaccine,
• gently reminding them to check the source of any information they may seek for themselves to guard against misinformation
• senior management pledging to have the vaccine when it becomes available to them (but employers should avoid placing pressure on those staff to have the vaccine)
• permitting (paid) time off during working hours for vaccination
• being sympathetic to and possibly enhancing sick pay arrangements for those who suffer after effects following their vaccination.

Where employees still refuse to be vaccinated, if they cannot work from home or be moved to a different role or site where vaccination is not required the only alternative left for the employer is to dismiss the employee for ‘failure to follow a reasonable management instruction’ to have the vaccination or for ‘some other substantial reason’. The employer’s case will be stronger if:

• There is an existing clause in the employment contract stating that medical intervention is to be administered where necessary to protect the employee’s health and that of those they come into contact with at work, or
• The sector the employer operates in could be given an instruction to have the vaccine because they operate in a high risk area e.g. care homes, looking after elderly, BAME or vulnerable individuals.

For employees who need to be dismissed as they can’t comply with the need to be vaccinated due to medical reasons, the dismissal would come under either the long term absence policy or ‘some other substantial reason’.

For those that need to be dismissed due to their refusal to have the vaccine the normal disciplinary process should be followed, where a series of warnings are issued for failing to follow a reasonable management instruction prior to dismissal.

Clearly, during this process some of these employees will feel aggrieved about their potential dismissal and may argue that as allowances will be made for employees who are pregnant or have a medical condition they should receive the same. There is no requirement for employers to agree to such requests.

Contractual clauses

Finally, organisations may wish to Insert a clause into employment contracts requiring employees to be vaccinated. For new employees this is relatively straightforward as the clause can be inserted and the contract then sent to the individual, who can choose whether or not to accept the contractual terms and if they don’t then they will not be able to start.

Please bear in mind though that, even if an individual hasn’t started in their new role yet, although they cannot claim unfair dismissal as they do not have 2 years’ service, if they feel they have been discriminated against e.g. due to their ‘belief’ regarding vaccinations they can raise a claim against the employer so we would only recommend such a contractual clause if the organisation has completed the above risk assessment and has a defensible genuine occupational requirement i.e. a sound, justifiable reason for insisting on employees being vaccinated.

For existing employees it is more tricky, as any contractual changes need to be agreed with them and a new vaccination clause would be a change to their contractual terms of employment so they may be able to claim unfair dismissal if they don’t agree with the change and it is forced on them. The organisation would need to consult with the employees or their union if one is recognised by the company regarding this change to employment contracts.

If agreement to the new vaccination clause in the contract is not forthcoming in the consultation process but the employer still needs to proceed with the policy the only real option is terminating the contracts of employees who refuse the new terms and offering them a new contract with the clause inserted for them to either accept or not! This runs the risk of unfair dismissal claims from those who do not wish to accept the new contract but sooner or later that is going to happen anyway if the employer insists on the vaccination but the employee continues to refuse.

I hope this week’s article makes sense, it was an absolute stinker to write! Take care, and have a great week.

Dismissals for an inability or a refusal to be vaccinated is clearly a moving feast at present and events are moving quickly. At 186hr we will keep up to date with tribunal outcomes, government policy and HR best practice. If you would like to discuss this or any other HR related matters please contact us.