3 min read | 31 March, 2021 By Helen Astill, MD, Cherington HR
In this special guest post, Helen Astill, MD, Cherington HR discusses the legal and ethical implications related to making it compulsory for employees to be vaccinated prior to returning to the workplace.
As of 21st March 2021, more than 53% of the UK’s adult population had received the first dose of the Covid-19 vaccination and more than 4% have had their second dose. The programme is progressing very fast, and the numbers are increasing daily. However, there are some pockets of the population where the uptake is much lower than ideal, and this is causing concern for employers and anxious returning employees.
The Government’s roadmap clearly indicates that everyone should be going back to work by 21st June, so many HR managers have been asked by their businesses whether they can insist that employees must be vaccinated. Indeed, it has hit the headlines with Charlie Mullins, owner of Pimlico Plumbers who has said that they will introduce a “No jab. No job” policy. But is this legal and can you do the same?
At present, vaccination against COVID-19 is not compulsory and employers have no legal right to compel workers to be vaccinated. Guidance from ACAS indicates that employers should support and encourage staff who wish to have the vaccine and should listen to their concerns and maintain good communication if they refuse.
Indeed, if there is no requirement in employees’ current contract of employment to be vaccinated, then you cannot insist. In some medical environments there is a requirement to have a Hepatitis B injection to protect the employees and the patients they encounter, and you are likely to find that such practitioners will want the Covid-19 vaccination anyway. But their employment contract may specify that specific inoculation as opposed to vaccinations in general.
Those who refuse to be inoculated, may not be able to have the vaccination for medical reasons, or perhaps they have been advised against it because of pregnancy concerns. In some cases, there may be religious objections to the vaccination. So, if you treat employees detrimentally (e.g. dismiss them) if they have refused the vaccine on one of those grounds, you risk a claim of unfair dismissal on discriminatory grounds – and that could be very costly. But there is nothing to say that for their own safety and that of others, that you cannot consider reasonable alternative roles that would reduce that risk for your current employees.
Employers could argue that they are relying on the Health and Safety at Work Act 1974 which imposes a duty of care on employers and an obligation to make workplaces as safe as reasonably possible. It also places a duty upon employees to cooperate with any actions put in place do so. Therefore, an employer requiring its staff to have the vaccination could argue that they have issued a “reasonable management instruction” with respect to their obligation to minimise risk within the workplace.
Failure to follow a reasonable management instruction could be managed and escalated as a disciplinary matter. This means that it may be possible in some instances to take action, but you would have to follow a proper process for it to have any chance of being considered fair.
It is very important however to note that the effectiveness of this justification will almost certainly depend on the type of work done by the employer and the services it provides. For example, a mandatory vaccination policy is more likely to be considered reasonable by an employment tribunal if it is issued by an employer in the medical /care sectors, or in businesses where employees are required to work in confined areas that cannot practicably be made COVID-secure. However, compulsory vaccination is highly likely to be deemed unreasonable if it is imposed on employees who can readily do their work from home or can observe reliable social distancing guidelines in the workplace with little difficulty.
It would be sensible to encourage all staff to take up the vaccine – perhaps by giving them paid time off to attend the vaccination centre, not least because there appears to be mounting evidence that vaccinations can also assist in reducing transmission, as well as reducing risk of serious ill health and/or death. This will add to any business case seeking to justify a requirement to have a vaccine.
Those people who have religious concerns can be directed to speak to their religious leaders and those who are simply “anti-vaxxers” citing safety of the vaccinations should be directed to official sources of information to counter the scaremongering that is being circulated on social media. Talk to them about vaccination as being a means to protect, not just them, but their families and their communities.
In the health and care sectors, employers may consider making a vaccination a requirement of employment for new employees, but again consideration of those who for medical or religious reasons cannot be vaccinated would need to be taken into account. If you can argue that there are no potential adjustments you can make, you could look at the requirement as being an intrinsic part of the role. But the questions of GDPR and holding that sensitive information would need to be addressed. The Information Commissioner’s Office (ICO) has helpful advice on collecting and keeping data relating to employee vaccinations.
This is not a clear-cut situation, so before taking any action in relation to introducing a vaccination policy at work, seek professional employment law advice to minimise the risk of claims against your business.
Helen Astill, MD, Cherington HR Ltd.