"No jab, no job"

Adam Bernstein explores the concept of employers insisting employees receive the Covid-19 vaccination as a requirement of employment and its implications.

Millions in the UK have reportedly received at least one dose of a Covid-19 vaccine in line with the Government’s ambition to ensure all UK adults are offered a vaccine over the coming months. However, vaccination also raises a number of legal issues, chief of which are the potential legal implications of employers making vaccinations a requirement of employment.

In February, justice secretary Robert Buckland indicated that it may be legal for companies to insist on new staff being vaccinated as a condition of their employment, as long as this requirement was written into their contract.

The response to this “no jab, no job” concept has raised a number of questions as to the lawfulness of their actions if employers insist on their employees being vaccinated.

Requiring employees to be vaccinated According to Mark Stevens, senior associate at law firm VWV, the law does not currently permit vaccinations to be mandatory.

“It is true,” he says, “that under the Public Health (Control of Disease) Act 1984, the Government has the power to make regulations to prevent, protect against, control or provide a public health response to, the incidence or spread of infection or contamination in England and Wales. And similar provisions in relation to Scotland and Northern Ireland were introduced by Schedules 18 and 19 of the Coronavirus Act 2020. But the regulations cannot require a person to undergo mandatory medical treatment, which specifically includes vaccination.”

He also thinks a mandatory vaccination requirement may amount to a breach of Articles 8 and 9 of the European Convention on Human Rights. So, an employer cannot force an employee to be vaccinated. But he adds: “It does not necessarily follow, however, that an employer cannot dismiss an employee for refusing the vaccine or require that they be vaccinated in order to join or work in their business.”

The ACAS view

ACAS has advised that rather than requiring employees to be vaccinated, employers should simply encourage staff and support them to do so; for example, by offering paid time off to attend vaccination appointments. ACAS guidance also suggests that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, ACAS says that it should consult with them, and, where further steps are necessary, ACAS advises this should be recorded in writing, such as a policy.

Stevens notes that “although ACAS guidance had previously acknowledged that it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, for instance, if travel overseas was a job requirement, it appears to have removed this wording when the guidance was updated on 25 February 2021”.

Employee discipline and dismissals

A natural question to ask is, very simply, can an employee be disciplined on the basis the request to have a vaccine amounts to a reasonable management instruction… that it is an instruction intended to protect health and safety? The answer, says Stevens, is “yes – and ACAS guidance supports this, but it indicates that the employer should be mindful of potential discrimination claims; whether it is a contractual requirement of the employee; and/or whether the vaccination is necessary for the employee to carry out their job”.

He adds: “It is also possible an employee could be dismissed for not having had the vaccine. Further, an employee could resign in response to a requirement that they are vaccinated.” On these points he cautions that, depending on the employee’s length of service, “the decision to impose mandatory vaccinations could lead to unfair dismissal claims or constructive dismissal claims from those employees who resign”.

Could the refusal to take the vaccine give the employer a potentially fair reason to dismiss? This, says Stevens, will depend on the individual employee’s circumstances and their reason(s) for not taking the vaccine. “An employer can, subject to following a fair procedure, fairly dismiss an employee who fails or refuses to comply with a reasonable management request”. But is requiring an employee to take the Covid-19 vaccine reasonable? The answer to this, says Stevens, depends on the nature of the employer’s business and customers – as he puts it: “What is a reasonable instruction in the context of a care home, may well be different in the context of an office or retail environment.” And, of course, there may be other, less intrusive methods of maintaining a safe workplace, or it may be the employee’s role can be adjusted to reduce any risks posed by the unvaccinated employee.

Ultimately though, Stevens thinks an employee may have a legitimate reason for not taking the vaccine. Here, the employer will need to carefully review the employee’s reasons for refusing to take the vaccine before taking the decision to dismiss, particularly in light of the discrimination risks.

Requiring a job candidate to be vaccinated

To some, it appears easier to impose terms on a job candidate since there’s no contract in place. In particular, employers may look to make having the Covid-19 vaccine a requirement of the job, rejecting any candidate who has not been vaccinated. But warns Stevens, “this raises significant legal risks; however, a requirement for employees or job applicants to be vaccinated is likely to amount to a provision, criterion or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, in contravention of the Equality Act 2010. This could lead to indirect discrimination claims”.

For the record, indirect discrimination may arise on a number of grounds. Namely:

● Age: as older individuals are currently being prioritised for vaccination by the Government, and private vaccinations are not an option, there is a concern that those age groups of employees who are not being prioritised for vaccination will be disadvantaged compared with those that are.

● Disability: some of the vaccines in production are not suitable for certain individuals on health grounds. This includes those with suppressed immune systems, certain allergies due to the risk of anaphylaxis, or mental health conditions.

● Pregnancy or maternity: current Government advice is that pregnant or breastfeeding women should not be vaccinated. Although indirect discrimination doesn’t apply to the protected characteristic of pregnancy and maternity, it is possible that a claim could be brought for a sex discrimination where a woman is disadvantaged by her employer’s vaccination policy due to pregnancy or maternity.

● Sex: women may wish to delay vaccination because they are trying to conceive.

● Race: vaccine take-up in previous national vaccination programmes has been lower in areas with a higher proportion of ethnic minorities. Research published in December 2020 refers to the UK Household Longitudinal study, which showed marked differences between different ethnic groups in levels of willingness to take up the Covid-19 vaccine.

● Religion or belief: it is possible that certain religious or moral objections could be protected under the protected characteristic of “religious or philosophical belief”.

The saving grace for employers, says Stevens, is that it can potentially be defended by an employer: “Discriminatory treatment can be justified on the ground that the provision, criteria or practice was a proportionate means of achieving a legitimate aim. But seeking to justify a mandatory vaccination requirement will involve a consideration of why the employer requires its employees to be vaccinated – it may be to look to ensure a safe workplace, or to protect customers or service users.” In essence, employers will have to consider how vaccination fits in with the other steps it has taken, and will continue to take, to ensure the workplace is “Covid secure”.

Here Stevens suggests it may be that, rather than requiring mandatory employee vaccination, there are other ways of ensuring the employer’s workplace or customers can be kept safe, such as asking employees to maintain social distancing or the implement the use of lateral flow testing for staff.

Declining the vaccine for personal reasons

Individuals may argue their belief that vaccines are not necessary or are dangerous amounts to a philosophical belief and that a requirement they receive the vaccine to continue to work infringes that belief. But as Stevens explains: “The Employment Tribunal would need to consider whether the employee’s views of the vaccine, or vaccines in general, is capable of protection. The test will be whether the belief attains a certain level of cogency, seriousness, cohesion and importance, and that it is worthy of respect in a democratic society, that it is not incompatible with human dignity and does not conflict with the fundamental rights of others.” He points out these arguments have not been tested in an Employment Tribunal and, therefore, the extent to which someone’s refusal to take the vaccine could be seen to be part of a philosophical belief capable of protection is questionable.

Conclusion

Making vaccinations mandatory for employees carries risks and should not be done without care and legal advice. In Stevens’ opinion, it may be more risk adverse, especially at present where vaccinations are not available to all, “to simply encourage and facilitate the vaccination of employees to avoid giving rise to claims for discrimination, or unfair or constructive dismissal”.

His general advice would be for employers to take the opportunity to review their current workplace health and safety measures and risk assessments, and consider where, if anywhere, employee vaccinations sit. As he says: “Many employers may be satisfied that they are able and will continue to be able to provide a Covid-19 secure place for their employees to work without requiring mandatory employee vaccinations. For those employers who consider that requiring vaccinations should form a part of those health and safety measures, time should be spent analysing why that is and developing a policy to fairly implement that requirement across its workforce.”

One thing is certain, acting in haste may lead an employer to repent at leisure.