Can an employer insist their employees have the Covid-19 vaccine?

This is a hot topic within employment now and has made headlines on the BBC and other news channels.

The speed of vaccine development and roll out has been remarkable. It is tempting to see it as a cure-all for the many difficulties this pandemic has created, including the economy and for employers. A survey of employers in January 2021 within 750 businesses found 23% plan to require their staff to be vaccinated (https://www.hrlocker.com/about/press-room/).

It is a controversial issue, however, since the government has made it clear that having the vaccine is not mandatory. Legally this makes it risky for employers to insist on employees being vaccinated. In this article I outline some of these risks, as well as some options for employers.

Legal risks

The legal arguments against requiring staff to be vaccinated include potential disability discrimination issues due to employees who cannot have the vaccine due to suppressed immune systems or health conditions.  Employees with certain religious beliefs or moral objections could also be protected by law, such as ethical vegans where they believe animal products have been used in the vaccine (gelatine derived from pigs is sometimes used in mass produced vaccines although Astrazeneca, Pfizer and Moderna have said there is no animal products in theirs). Ethical veganism was considered protected by employment legislation in a case in early 2020.

Consideration also needs to be given as to whether it is right to insist an employee has the vaccine when the programme is in such an early stage. There is a human rights argument arising from an employer insisting on the employee undergoing a minor medical procedure.

Personal injury arguments could arise if an employee who is required to have a vaccine experiences an adverse reaction to it. Employees could refuse such a requirement due to their personal concerns about the vaccines available, or the pressure they are being put under to have one to keep their job. This could result in a grievance, and constructive or unfair dismissal arguments.

The ACAS guidelines advise employers to support their staff to have the vaccine but not to insist on it ACAS Guidance on COVID-19 vaccinations.

New recruits

These risks apply to insisting existing employees have the vaccine, but what about new starters?

Can it be made a contractual condition that an employee has the vaccine before starting?  Pimlico Plumbers have already made headlines because of their insistence that for their new starters it will be ‘no jab, no job’.

Currently this is discriminatory on the grounds of age, because younger applicants are unable to receive their vaccines until later this year. This risk will decrease as the vaccine roll out continues, with the government currently predicting that all adults will have been offered the vaccine by 31 July 2021.

Whilst the legal risks are lower when applied to new starters, and the risk of unfair dismissal claims are removed if a job applicant is unsuccessful, many of the other risks still apply including claims for discrimination.

Charlie Mullins, the boss of Pimlico Plumbers, remains confident he can implement this requirement within the next 2-3 months.

On BBC Radio 4 he said: “We’ve obviously been talking to our lawyers and they’re very happy that we can add this proposal to any new workers that start with us once the vaccine is rolled out.”

I do not share that confidence. Until tribunals hear cases on these issues, it is impossible to predict how they will be decided.

Currently the tribunal system is overloaded, which means if a claim relating to the refusal to be vaccinated were raised now, it is unlikely a hearing would take place until 2022 at the earliest. Employers cannot wait that long before making their decision on this issue.

Could mandatory vaccination ever be justified?

In my view it is unlikely to safely make vaccination mandatory, even in roles where employees have contact with vulnerable people.

Where it may be possible for some employers to require employees to be vaccinated could be when a job requires overseas travel and vaccination is necessary for travel. Some airlines have already announced that vaccinations will be mandatory to fly https://www.which.co.uk/news/2021/02/will-i-need-a-coronavirus-vaccine-to-fly-or-travel-in-2021/.

The UK government recently announced https://www.bbc.co.uk/news/uk-56169616 that it is now considering the idea of vaccine passports. If the law changes to require evidence of vaccination in certain situations within the UK, then employers can also insist on evidence of vaccination in the same situations.

Alternatives to mandatory vaccination

In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider how best to achieve voluntary vaccination among their employees. For larger employers, collective consultation with employee or trade union representatives is worth considering. For smaller employers, a process of consultation alongside internal communication on the advantages and disadvantages of vaccinations may increase voluntary take up. However, it will remain an extremely sensitive area, and it requires careful communication between employers and their staff.

The government has increased access to testing, and regular testing is an alternative to mandatory vaccination. Workplace testing is now accessible for all businesses with more than 50 employees, and more details can be found at Workplace Testing and Testing Guidance for Employers.

For smaller employers testing kits can be purchased, and in areas where anyone without symptoms is entitled to have a lateral flow test (see Find if your area is offering lateral flow tests) employees can be sent to the government testing sites without charge.

Some employees may still be unwilling to participate in testing. Many of the same legal considerations outline above may apply, but provided the employer has legitimate reasons for testing and applies the testing requirement in a non-discriminatory manner, it is easier to justify and carries less legal risk.

Data protection issues relating to vaccination and testing

If an requires their staff to be vaccinated or tested and processes any personal or special category data as a result, then there are data protection implications which are outside the scope of this article. For further advice, see the guidance from the Information Commissioner’s Office at ICO Guidance on data protection and testing.

Conclusion

The decision to require employees to be vaccinated is not without risks. As with much about this pandemic, there are a wide spectrum of different views which employers will need to navigate as best they can.

Some employers may decide the commercial risks of non-mandatory vaccination of employees outweighs the risk of employee claims. Whatever an employer decides, communication with employees will be key.

Disclaimer: This Article note does not constitute legal advice and employers are encouraged to take specific legal advice on their own situation.
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Disclaimer: Nothing in the Legal Insights section and this blog is intended to provide legal or other professional advice and, if readers are interested, they should consider taking separate legal or other professional advice accordingly.

Karen Coleman

Specialist in Employment

E: [email protected]
T: +44 (0)845 257 9449