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"No Jab - No Job" Policies: Can employers require staff to have Covid-19 vaccinations?
- AuthorClare Gilroy-Scott
The Justice Secretary, Robert Buckland, recently commented that it is unlikely employers could make their current workers get the COVID-19 vaccine, but that it may be legal to insist that new employees be vaccinated against COVID-19. We consider whether it would be lawful for employers to mandate that their workforce has the vaccine and discuss possible employment law implications of such a policy.
Can an employer mandate its current workforce to get the vaccine?
There is currently no legal requirement for the population to be vaccinated and the government has said that there are no future plans to make it so. Where there is no legal requirement, an employer cannot force an employee to be vaccinated without their consent.
Employers may also have difficulty justifying such a policy on health and safety grounds. It is understood that the vaccine should prevent a more serious illness but it is not yet known whether it will reduce transmission. The efficacy of the vaccine over a long period is similarly not known. Employers should note that the vaccine does not yet replace the core safety principles of hygiene, isolation and social-distancing and should, as a first consideration, follow the government guidance for making workplaces Covid-secure (see https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19).
Notwithstanding this, a number of employers have indicated that they will be introducing such a policy. Requiring vaccination as part of a new policy raises the following employment law issues:
- Breach of contract: An existing employee with over two years’ service may claim that a refusal to provide work to them or perhaps to prevent them from coming to the workplace if they do not take the vaccine amounts to a repudiatory breach of contract, entitling them to resign and claim constructive unfair dismissal.
- Human rights: It may be a breach of the individual’s Article 8 right to privacy under the European Convention on Human Rights which still applies post-Brexit. The European Court of Human Rights is due to hand down judgment on two vaccine-related cases (not Covid-19 vaccines) which may provide further insight as to whether mandatory vaccine requirement may be lawfully justified.
- Discrimination: mandatory vaccine requirements could lead to claims of discrimination relating to various different protected characteristics (discussed further below).
- Data Protection: Requiring evidence of vaccination-status and retaining vaccine-related records gives rise to various implications under the GDPR and data protection laws.
Current guidance from ACAS is that employers should provide support and encouragement to their staff to get the vaccine, if it is offered to them, without it being a requirement. It is suggested that employers should have a dialogue with employees who are vaccine-hesitant, highlighting the benefits for the individual and the wider population, and permitting paid time-off to staff to attend their vaccine appointments. Consultation with workplace health and safety representatives or trade unions may be required in some workplaces.
What are the issues if the policy only applies to new employees?
Whilst the Justice Secretary has indicated that the policy may be applied to new employees, his reasoning appears to be based more upon considerations of the difficulty in getting large numbers of existing employees to agree to a change in their contract whereas new employees would only be offered a contract if they have had the vaccine. Employers should be mindful of employment law issue in this approach, possible discrimination in particular, as the Equality Act 2010 applies to applicants for work, as well as employees.
In what ways could such a policy be discriminatory under the Equality Act 2010?
If mandating the workforce to get the vaccine adversely affects people from a protected group, it is likely to be indirectly discriminatory. The following people may benefit from such a protection (by way of example only):
- Younger works - the vaccine is currently only be offered to people through the NHS who are working to a priority list with the most elderly and vulnerable being offered vaccines first, younger workers who have not been offered the vaccine would have a strong case to argue age discrimination if they were to face dismissal, detriments, or are not offered a job as a result of not having had the vaccine.
- Pregnant women - according to the NHS, most pregnant women won’t routinely be offered the vaccine unless they have a high risk of getting coronavirus, due to limited research surrounding the affects of the vaccine on a foetus. It could therefore strongly be argued that dismissing or treating a pregnant woman less favourably because they cannot get the vaccine is an act of indirect sex discrimination.
- Those with a pre-existing medical condition who are advised not to have the vaccine for reasons relating to this condition - if the medical condition falls within the statutory definition of a disability under the Equality Act 2010, then they could have grounds to argue that dismissing them or treating them less favourably because they cannot get the vaccine is an act of disability discrimination
- Those with extreme vaccine hesitancy - whilst vaccine hesitancy is not a protected characteristic, it could be argued that if the hesitancy is related to a pre-existing mental health condition which falls within the definition of a disability, then as mentioned in point 3 above, they may also have grounds to bring a disability discrimination claim.
- There are a small number of religious groups that disapprove of vaccinations and they may have protection from discrimination on grounds of religion or philosophical belief.
- It is understood that vaccine take-up is lower in BAME communities as a result of higher vaccine-hesitancy which may give rise to allegations of indirect race discrimination.
Those commonly known as “anti-vaxxers” may argue that their beliefs for not getting the vaccine amount to protection from philosophical belief discrimination. Whilst these beliefs may be strongly held, it may be difficult for them to reach the current tests for a protected belief. Case law indicates that a protected belief must genuinely held, be a belief not a viewpoint and related to a weighty and substantial aspect of human life, it should have cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society and should not conflict with the fundamental rights of others. There are many different strands to the beliefs of anti-vaxxers so whether an alleged belief has protection from discrimination will be fact specific and would need to be tested.
Is the policy appropriate and proportionate?
Given the above examples of possible indirect discrimination, employers would need to ensure that their policy is justified as a proportionate means of achieving a legitimate aim and the burden will be on the employer to show this. Careful thought should go into this. Although protecting the health and safety of the employer’s staff, workers, visitors and customers/clients is likely to be the core aim, there may be some doubt as to whether the vaccine policy is appropriate and proportionate until there is clearer evidence that vaccination prevents or reduces transmission in the workplace. Employers should also give thought to whether alternative, less discriminatory steps could be taken, the obvious ones being to follow the guidelines for a safe workplace and to introduce or encourage regular Covid-19 testing.
What should employers do?
Employers should give the situation careful consideration, ensure that they are up to date with current guidance and take advice as appropriate.
This article was written by Clare Gilroy-Scott, Partner, Employment, and Charlotte Moorhouse, Trainee Solicitor. Please contact Clare Gilroy-Scott or Alexandra Bonner to discuss any of the points raised in this article further.
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This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.