The law does not currently permit vaccinations to be mandatory
Millions of people in the UK have reportedly received at least one dose of a COVID-19 vaccine, in line with the Government's ambition to ensure that all UK adults are offered a vaccine over the coming months. However, vaccination also raises a number of legal issues, chief of which is the potential legal implications of employers making vaccinations a requirement of employment.
In February 2021, Robert Buckland, Secretary of State for Justice, 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 (BBC News, 2021).
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. Furthermore, similar provisions in relation to Scotland and Northern Ireland were introduced by schedules 18 and 19 of the Coronavirus Act 2020. However, the regulations cannot require a person to undergo mandatory medical treatment, which specifically includes vaccination’.
Stevens also thinks that a mandatory vaccination requirement may also 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. However, he adds: ‘it does not necessarily follow that an employer cannot dismiss an employee for refusing the vaccine or require that they be vaccinated to join or work in their business’.
The Advisory, Conciliation and Arbitration Service view
The Advisory, Conciliation and Arbitration Service (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 that it is important for staff to be vaccinated, ACAS says that it should consult with them, and, where further steps are necessary, ACAS advises that this should be recorded in writing in, say, a policy.
However, 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’.
» A requirement for employees or job applicants to be vaccinated is likely to amount to a provision, criterion or practice 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 «
Employee discipline and dismissals
A natural question to ask is whether an employee be disciplined on the basis that 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 that, ‘it is also possible that an employee could be dismissed for not having had the vaccine. Furthermore, 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’. However, 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’. Additionally, of course, there may be other, less intrusive methods of maintaining a safe workplace, or it may be that the employee's role can be adjusted to reduce any risks that are posed by the unvaccinated employee.
However, ultimately, Stevens believes that 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 is 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. However, Stevens warns that, ‘this raises significant legal risks. 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’.
Indirect discrimination may arise on a number of grounds, which are detailed below.
Age
As the Government is prioritising older individuals for vaccination, and private vaccinations are not an option, there is a concern that the age groups of employees who are not being prioritised for vaccination will be disadvantaged compared with those that are.
Disability
Some of the vaccines that are 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 does not apply to the protected characteristic of pregnancy and maternity, it is possible that a claim could be brought for 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 January 2021 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 (Scientific Advisory Group for Emergencies, 2021).
Religion or belief
It possible that certain religious or moral objections could be protected under the protected characteristic of ‘religious or philosophical belief’.
Maintaining a safe workplace
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. However, 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 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 that it has taken, and will continue to take, to ensure that the workplace is ‘COVID-19-secure’.
Here, Stevens suggests that, rather than requiring mandatory employee vaccination, there are other ways of ensuring that 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
Some individuals may argue their belief that vaccines are not necessary or are dangerous, and that this amounts to a philosophical belief and a requirement to receive the vaccine to continue to work infringes that belief. However, 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 that 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 that is 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-averse, 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 is 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 Stevens 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.