Employers have a duty to ensure, as far as reasonably practicable, the health and safety at work of their employees. As part of this exercise and as a concern of COVID, Employers can encourage employees to take up the vaccine if they wish. However, whether employers can take the further step of mandating vaccinations, as a health and safety requirement, is only likely to be an option in the minority of cases.
The Government has made it a requirement for all patient facing employees working in care homes regulated by the Care Quality Commission to be fully vaccinated unless they are medically exempt. Similar provisions have recently been enacted to apply to all NHS staff, although there is talk of the implementation dates for this being pushed back potentially it seems. This means that NHS and Care Home employers and will be able to rely on a statutory requirement for potentially dismissing employees who refuse the vaccine. These Employers will still need to carry out a fair procedure and consider any alternatives.
For other employers, there are legal and practical problems with mandating the vaccine and dismissing employees who refuse to be vaccinated, including the risk of claims of unfair dismissal for those employees who have two years’ service or more and potential discrimination claims otherwise. The mainstream advice including from ACAS is not to mandate but to persuade and encourage. It can be an emotive and divisive subject for some.
If it is to mandate, absent a statutory obligation, an Employer will need a fair reason for dismissing anyone who refuses. It could be difficult to rely on a health and safety reason. Whist being vaccinated may have reduced the risk of becoming infected according to medical experts, we now know that being vaccinated does not prevent transmission of Covid once infected (no more evident than with the spread of the Omicron variant over the past few months amongst millions of vaccinated people around the world). It is also now very widely reported that immunity wanes quite quickly after a few months or so of vaccination, hence the push for boosters.
Very recent data from the US suggests strong immunity amongst those who have previously been infected with COVID, whether vaccinated or not. Therefore, whilst seemingly sensible and desirable for Employers to want to ensure staff are protected as far as a possible, it is clear that the vaccine is not infallible and perhaps not the only way, and to mandate on this basis alone therefore risks likely successful challenge. Add to this the question as to whether a policy would mandate all future boosters or new vaccines offered to tackle COVID and the administrative logistics associated with this. Such a policy would be difficult to justify in advance, and may become increasingly difficult to police and enforce, and would therefore need to be kept under regular review.
If an employer wishes to rely on health and safety grounds to reasonably justify mandating the vaccine, it would first need to undertake a detailed risk assessment exercise which supported the plan and in doing so to demonstrate the science relied upon behind the decision, based upon the workplace in question and even the demographic of the workforce. One problem with this is that the science is always developing as the pandemic evolves and hence the target is currently still moving. If a mandate is imposed, before reaching a decision to dismiss those who do not comply, individual circumstances will also play a part (consider for example an employee who can demonstrate antibody immunity through prior infection). An employer would also need to show that the combination of alternative, now common place, health and safety measures, for example social distancing, hand sanitising, regular lateral flow tests, working from home, etc, were insufficient to mitigate against the risks posed.
The current state of flux and change and the potential for “challenge” to the efficacy of vaccination alone as a long-term solution, brought about by the Omicron experience, means it could well be rare that mandating the vaccine in the workplace would be viewed as fair and reasonable from an unfair dismissal perspective, absent a statutory obligation.
There are some obvious exceptions. If an employee’s role involves travel to overseas locations, the vaccine is likely to be a necessary job requirement and the employer is more likely to have a fair reason for dismissing any such employee who refuses the vaccine if there are no alternative roles for that employee, even if it is not otherwise mandated in their workplace.
For employees who have less than 2 years’ service or new starters, mandating the vaccination is less risky as generally there will be no risk of unfair dismissal claims. They still, however, have the right not to be discriminated against because of protected characteristics.
Those who have been advised not to have the vaccine due to a medical condition could argue that it is a disability which prevents them from doing so and therefore to dismiss would be discriminatory.
For those who have chosen not to have the vaccine due to a phobia of needles for example we consider that they would probably struggle to bring themselves within a protected characteristic of disability under the Equality Act. The Equality Act requires a physical or mental impairment that has a substantial and long-term negative effect on an individual’s ability to carry out normal daily activities. Activities are defined as those which are carried out by most men or women on a fairly regular and frequent basis, and it would be difficult to argue that receiving jabs was a normal day to day activity.
As to religious belief, there is no doctrinal prohibition on vaccination that we are aware of and there is no Covid vaccine which contains pork gelatine for example. Therefore, an employee or a candidate is probably unlikely to be able to argue religious discrimination. The Equality Act also protects individuals against discrimination on grounds of philosophical belief. Some ethical vegans may disagree with vaccinations on the basis that they will inevitably have been tested on animals. Ethical veganism has previously been found by the Employment Tribunal to amount to a belief, capable of being protected under the Equality Act. For an individual to argue that they have been discriminated against on the grounds of such a belief, they would need to establish that their belief was genuinely held, cogent, serious and worthy of respect in a democratic society.
For pregnancy and maternity discrimination, as of 16th April 2021, the advice for pregnant women changed and the vaccination has been recommended since then. However, given that the vaccine is relatively new it is perhaps understandable that some pregnant women may be hesitant or concerned about having it. An employer would therefore be a well advised to deal with any concerns sympathetically and consider these and the science before reaching any decisions to dismiss.
For those employers outside of the care home/NHS environment, it is certainly an area to keep an eye on as the complexion of the pandemic/endemic will undoubtedly continue to alter. For now, continuing to encourage and support rather than mandate would appear the better option. Very careful consideration should be given to any policy mandating vaccines and full justification to be relied upon should be collated beforehand to reduce risks of successful claims.
Please contact our specialist Employment Solicitors if you would like to discuss this issue in more detail or require assistance in implementing a Covid Vaccination Policy.