The UK government was the first to authorise the use of the Pfizer/BioNTech’s COVID-19 vaccine on 2 December 2020.
We discuss below whether employers will be able to force employees to have the Covid-19 vaccine and the legal issues surrounding this.
Can employers force employees to have the Covid-19 vaccine?
In most circumstances, it is very unlikely that employers will be able to lawfully force employees to have the Covid-19 vaccine to attend work.
The current position on vaccinations, such as the flu jab, is that:
- An employer cannot require employees to receive a vaccination
- A dismissal based on an employee’s refusal to be vaccinated will generally be unfair unless there is a strong reason for compulsory vaccination.
The Covid-19 vaccine is likely to be subject to the same rules, although there may be some exceptions where the risk of Covid-19 is especially high, such as in the care sector.
As the government has not made the Covid-19 vaccine compulsory, employers will face a severe risk of claims if they make the vaccine mandatory in their workplace.
Discrimination claims
The Covid-19 vaccine may not be suitable for everyone, so employers will be vulnerable to discrimination claims from employees unable to have the vaccine if they make it mandatory.
For example:
- Employees could bring claims of disability discrimination if they are unable to have the vaccine because of an underlying health condition.
- There is also the risk of age discrimination claims from employees who are not yet able to have the vaccine because they are young and therefore a low priority.
- Employees may also object to the vaccine on religious or moral grounds and they could bring discrimination claims based on their protected characteristic of religious and philosophical belief.
Therefore, any requirement for employees to be vaccinated will need to include an exception for employees that fall within any of these groups.
This also brings into question the treatment of such individuals in the workplace.
Employees who have not been vaccinated will need to continue to follow strict social distancing rules and wear protective clothing to protect themselves and any colleagues or clients who have also not had the vaccine.
In this situation, an employer may need to consider alternative working arrangements for such employees, like redeployment and working from home, but this may also incur a risk of discrimination claims if this differential treatment is not sufficiently justified.
Personal injury claims
By forcing employees to have the Covid-19 vaccine, employers also open themselves to the risk of personal injury claims from employees who suffer adverse side effects from having the vaccine in its early stages.
Must employees provide consent?
As having a vaccine is a form of medical treatment, an individual must provide free and informed consent.
If an employee has a vaccine because it is a requirement for them to work, it is questionable whether the necessary consent would be provided due to the pressure from their employer.
Therefore, employers will need to obtain the consent of employees for them to have the Covid-19 vaccine lawfully.
Any measures an employer enforces in relation to employees having the vaccine should be phrased as a strong recommendation and not an absolute requirement, so that the individual employee’s consent must be provided.
Are there any health and safety grounds which employers can rely on?
Employers may decide that employees who have not had the vaccine cannot attend the workplace for health and safety reasons.
When making such a decision, employers should be aware that:
- It will be a long time before most people have the opportunity to receive the Covid-19 vaccine as it will be administered on a priority of need basis
- The vaccine is 95% effective so there is a small chance that an employee can still contract Coronavirus even if they have received the vaccine
- Contact with employees and clients who have not been vaccinated may be necessary in the ordinary course of work
Therefore, employers should not mistakenly think that doing this allows them to relax or remove the protective measures that have been enforced in the workplace from the outset of the pandemic.
This approach of preventing employees who have not been vaccinated from entering the workplace inevitably involves a serious risk of the discrimination claims outlined above.
There is also a risk of further claims, such as unlawful deduction from wages, if an unvaccinated employee is not paid because they are not allowed to turn up to work.
Any employer seeking to rely on health and safety grounds, should consider alternative arrangements for employees unable to have the vaccine, such as remote working, so they do not suffer detrimental treatment.
In certain types of work where the risk of Covid-19 is particularly high, this approach will be reasonable despite alternative arrangements not being possible, such as in the care sector.
What measures can employers introduce?
Voluntary vaccination
An advisable approach would be to encourage employees to have the Covid-19 vaccine voluntarily through awareness campaigns, without the need for a forceful approach.
If there is a recognised trade union, the employer could consider collective consultation to start an open conversation with employees and their representatives about the benefits of vaccination.
Mandatory vaccination
Employers could introduce a policy requiring eligible employees to have the Covid-19 vaccine.
However, it would be difficult to enforce without introducing a corresponding contractual requirement.
Employers may wish to introduce a contractual term requiring employees to be vaccinated against Covid-19, but this would amount to a change in terms.
The smoothest way to change employment terms is with the consent of the affected employees, but the employer is likely to face considerable opposition due to the controversial and intrusive nature of a contractual requirement for employees to have the Covid-19 vaccine.
Therefore, the employer may be forced to unilaterally impose the contractual requirement or dismiss and re-engage the employees, which is a risky approach in terms of potential claims.
What if an employee refuses to have the vaccine?
Even if there is a contractual requirement for employees to have the Covid-19 vaccine, it will be difficult for employers to fairly discipline and dismiss employees who breach the requirement.
If an employee brought a claim of unfair or constructive dismissal because they refused to be vaccinated, we expect that the tribunal would favour the employee’s argument in most cases.
The threshold for justifying a term that effectively forces employees to receive medical treatment against their wishes is likely to be very high.
Are there any specific health and safety grounds for care homes?
Employers in the care sector are likely to have compelling arguments in favour of requiring employees to have the Covid-19 vaccine on health and safety grounds.
As the work of care home staff involves close interaction with vulnerable individuals, the refusal of care staff to be vaccinated would put residents at a severe health and safety risk.
In these circumstances, it may be reasonable for a care home employer to require its staff to have the Covid-19 vaccine to attend the workplace.
However, it is important that care home employers act reasonably in putting together and enforcing a policy requiring employees to have the Covid-19 vaccine to mitigate the risk of resulting claims.
Risk of discrimination claims
Of course, there is still a risk of care home employees bringing discrimination claims if they refuse to have the Covid-19 vaccine on the basis of a protected characteristic, such as disability, age or religious/philosophical belief.
A general belief against the Covid-19 vaccine (such as concern over the potential side-effects etc) will be unlikely to fulfil the strict requirements of a philosophical belief protected by the Equality Act 2010.
In any case, claims will not succeed where the employer can demonstrate that the alleged discrimination was justified as a proportionate means of achieving a legitimate aim.
Therefore, employers in the care sector may be able to defend potential discrimination claims resulting from a mandatory Covid-19 vaccine policy on the basis that the policy was a reasonable and proportionate approach to best protect the health and safety of its vulnerable residents.
Risk of unfair dismissal claims
It is possible that employers in the care sector may have scope to dismiss employees who refuse to have the Covid-19 vaccine for ‘some other substantial reason’, based on a breach of health and safety rules and a failure to follow reasonable instructions.
That said, given the level of intrusion, any vaccine policy would need a high standard of justification four any such action to be deemed appropriate.
In order to defend claims of unfair dismissal, the employer will need to demonstrate that the dismissal was within “the band of reasonable responses” that a reasonable employer would take and that they followed a fair and reasonable process.
When assessing if a dismissal was fair an Employment Tribunal would have to determine whether such action was reasonable and proportionate in the circumstances and consider factors such as if the vaccine actually reduces transmission or simply suppresses symptoms.
If there is substantive evidence to prove that the effect of the vaccine is more effective in suppressing transmission over and above current social distancing measures, it could then be possible in theory to justify disciplining an employee where they refuse, or relocating them to lower risk roles, and other alternative options are not possible.
Therefore, it is advisable that care staff who refuse to comply with their employer’s policy on compulsory vaccination are subject to a range of disciplinary sanctions rather than being dismissed outright.
For example, a meeting should be held to discuss the employee’s reasons for refusal and if appropriate the employer should issue the employee with a series of written warnings in line with their disciplinary procedure to encourage vaccination.
Mandatory vaccination policy
Care sector employers who want to require employees to have the Covid-19 vaccine should conduct a thorough risk assessment.
This can be used to provide evidence that the mandatory vaccination policy is a necessary and reasonable approach to protect vulnerable individuals against the risk of Covid-19.
The policy could state that employees who unreasonably refuse to have the vaccine may be subject to disciplinary action.
However, exceptions need to be made for specific individuals who have valid and protected reasons for refusing to have the Covid-19 vaccine.
For example, pregnant employees who have been advised by the government not to take the vaccine.
Mandatory Vaccines in the Care Sector
Speaking on BBC Radio 4’s Today programme, Bobby Ahmed (Managing Director here at Neathouse Partners, & Employment Lawyer) said there could be grounds to make take-up of the vaccine mandatory in the care sector.
Bobby told the programme: ‘I think there is most certainly within the care home setting a workplace-specific argument to support vaccination as a precondition of work.
‘In that respect, while there are no statutory provisions to allow the UK Government to force individuals to become vaccinated, there is legislation within the employment context which certainly care providers can avail themselves of.
‘The main one here is the Health and Safety at Work Act 1974, which obliges employees to take reasonable steps to reduce any workplace risks and in the context of vulnerable workers, that is clearly apparent.
‘They have to ensure that there are appropriate (steps taken) to ensure that the vulnerable persons that care is being provided to are not exposed to such risks.
‘I would think it is highly likely it could be deemed to be reasonable for employers to ask employees to be vaccinated.’
Other legal issues to be aware of
Privacy
Employees may argue that a requirement for them to have the Covid-19 vaccine is an unnecessary invasion of their privacy, in breach of their right to private and family life in Article 8 of the Human Rights Act 1998.
Private employers are not bound by the Human Rights Act as it only applies to public authorities, which include tribunals and public sector employers.
However, if a claim is brought by an employee of a private employer, the employment tribunal will need to consider the individual’s privacy rights when forming a judgment.
GDPR
Any personal or special data that an employer processes in relation to the vaccination of its employees will be subject to the usual data protection rules under the GDPR and must only be processed for reasonable and lawful purposes.
Summary
It will be difficult for employers to lawfully force employees to have the Covid-19 vaccine once it becomes widely available.
However, each situation is different and in specific circumstances, such as the care sector, where there is a severe health and safety risk, employers will have more scope to require employees to be vaccinated.
Employers should look out for government guidance on the Covid-19 vaccine and be aware of the risks involved in introducing any kind of requirement for employees to be vaccinated.
Generally, the cautious approach would be to strongly encourage suitable employees to voluntarily have the Covid-19 vaccine and to accept that some employees will refuse for valid reasons.
Can employers only recruit staff who have had the Covid-19 vaccine?
Many businesses are already planning to introduce a clause into future employment contracts, which will require new recruits to have the Covid-19 vaccine as a pre-condition of their employment.
Once the vaccine is readily available, such clauses may be enforceable as there is much more scope for employers to require new staff to have the vaccine than there is to force existing employees to be vaccinated.
This is because there is not much restriction on the terms that can be included within an employment contract – provided they do not breach the law.
It is much easier to include a clause in the employment contract when an employee is first hired than to try to incorporate a clause into their contract once they already work for you.
Discrimination
Having said this, the discrimination points outlined above still apply to recruitment.
If an individual is denied employment because they won’t have the Covid-19 vaccine, but their refusal is based on a valid medical reason, e.g. because of a disability or because they are pregnant/breastfeeding, they will be able to bring a discrimination claim.
Therefore, any requirement that new staff must be vaccinated against Covid-19 would have to contain a degree of flexibility to account for applicants that cannot have the vaccine on medical grounds.
Job role
It would be advisable for employers considering this approach to assess the relevant job roles to determine if it is really necessary for new employees to be vaccinated.
For example, it would be hard for an employer to justify the requirement for an employee to be vaccinated if they could carry out their role from home.
Whereas, in the care sector where staff are working closely with extremely vulnerable individuals, such a clause could be justified on health and safety grounds.
Data protection
Asking whether individuals have had the Covid-19 vaccine as part of the recruitment process will involve the collection and processing of sensitive personal data.
To comply with GDPR, such data must only be used for reasonable and lawful purposes.
Employers are free to ask job applicants whether they have been vaccinated against Covid-19 but there is no obligation on individuals to disclose this information or provide evidence of vaccination.
Therefore, any employer considering this approach should do so cautiously so that any policy or contractual clause they introduce is not unlawfully discriminatory.
