No Jab, No Job: The Murky World of Mandatory Vaccinations

By Nic Hart

The ongoing pandemic has inevitably caused employers to address a significant number of issues regarding employees and working practices. Mandatory vaccination has become an acute and difficult topic in the context of the employment relationship.

As the vaccination program continues to be rolled out across the country, one of the recent issues causing controversy and consternation for employers is the question of mandatory vaccinations for employees.  Some businesses such as Pimlico Plumbers and Qantas have been reported as coming out in support of mandatory vaccination policies. Pimlico Plumbers in particular have proposed implementation of a “NO JAB NO JOB” policy and Qantas have advised that they plan to require all international passengers to be vaccinated against Covid-19 as a condition of travel.

Initially the UK Government position appeared to be that the state would not require ‘vaccination passports’, but in recent days the media reports that the UK Government is reconsidering the question of ‘vaccination passports’.

The vaccination program has undoubtedly raised questions about how far employers can go to insist that employees are vaccinated as a requirement to continue in their role at work. Employers have queried whether they can impose disciplinary sanctions or even dismiss if an employee refuses what an employer considers a reasonable instruction that the employee be vaccinated.

It should be noted from the outset that as of 20th January 2021, there is no legislation or other legal basis in the UK that the vaccine should be mandated nor has the UK Government suggested that it be made mandatory at this time.

A starting point is the Public Health (Control of Disease) Act 1984 which states that individuals cannot be forced to have medical treatment, which includes a vaccine, but rather gives magistrates the power to prevent the spread of the disease in other ways such as self-isolation.

In a discrimination law context vaccination policies could potentially be objectively justified as a proportionate means of achieving a legitimate aim given the health and safety obligations upon employers to ensure a COVID 19 secure workplace and to maximise the number of employees who can attend work safely. Much will depend upon the way in which any compulsory vaccination policy is operated and the impact of any policy upon individual employees by disciplinary sanctions for refusal of vaccination.

A dismissal of an employee with more than 2 years’ service for refusing to be vaccinated is currently likely to be an unfair dismissal and potentially unlawfully discrimination. Some of the reasons for this are as follows:

  • Whilst general ‘vaccine hesitancy’ is almost certainly not a protected characteristic for the purposes of discrimination law, it may be reasonable for an employee to have genuine concerns about either the validity of the vaccine or the potential for an adverse reaction.  A more specific belief against vaccinations shared by the so called ‘anti-vax movement’ may be a protected characteristic for the purposes of discrimination law, if the employee can explain it as part of a cohesive and serious conviction, i.e. for religious or ethical reasons. In those circumstances a disciplinary sanction for refusal of vaccination would be unlawful discrimination.
  • Administering the vaccine requires an intrusive action to an employee such that it seems unlikely that an employer can require an employee to compromise their bodily integrity in this regard without specific freely given written consent.
  • There is a potential argument under Article 8 of the Human Rights Act which covers protection for the right to respect for a private life. The courts have interpreted the concept of ‘private life’ very broadly and this protection potentially includes protection against mandatory vaccination such that compelling an employee to be vaccinated may be in breach of Article 8.
  • Insisting that an employee has a vaccine against their wishes will potentially breach the implied contractual term of mutual trust and confidence, implied as a matter of law into every employment contract.
  • A vaccination requires an individual’s informed and voluntary consent. If an employer forces an employee to receive a vaccine injection under duress this could constitute an unlawful injury.

There may be more scope for an employer to insist that an employee is vaccinated if it is critical to the business mission that employees are vaccinated such as in care homes, NHS or public facing essential worker roles, but even so this should be weighed against the reasons for any employee objections and whether disciplinary action including dismissal will be considered to be a reasonable sanction.

Whilst the Health and Safety at Work Act 1974 (HSWA) obliges employers to take reasonable steps to reduce any workplace risks and obliges employees to co-operate with their employer so that the employer can reduce workplace risks, it would still seem unlikely that any disciplinary sanction and particularly dismissal for an employee refusing to be vaccinated is likely to be fair. It should also be noted that as of 20th January 2021, the Government, as the largest employer in a health and care context, is not making vaccinations for employees mandatory.

Given the early stages of the UK vaccination program each business considering a vaccination policy should consider its individual circumstances. This should include risk assessments to determine the impacts of employees refusing a vaccination and if additional measures can be put in place to mitigate this risk. Any employer considering dismissal as a sanction for an employee refusing to be vaccinated will need to show clear consideration of alternatives to dismissal and why, in a discrimination context, dismissal was a proportionate means of achieving a legitimate aim.

There are also a number of wider issues to consider. Any data collected on whether an employee has been vaccinated is likely to be special category personal data and will need to be collected and processed in accordance with data protection legislation and ICO guidance. Employers should also ensure that discussions regarding vaccinations do not give rise to bullying or harassment against those employees who do not wish to be vaccinated, or those that do.

Employers should be mindful that there have been reported cases of anaphylaxis following vaccination such that an employee who suffers an adverse reaction may try to initiate personal injury proceedings against the employer.

There must be clear regard to contractual rights to impose any vaccination policy. Employers would be best advised to initially help employees to make informed decisions regarding vaccination by sharing impartial, factual information and encouraging employee knowledge and cohesion. Employers must avoid making groups of employees feel marginalised, such as older workers who may be vaccinated earlier or pregnant employees who at this time are unable to be vaccinated.

As the vaccine program progresses and vaccines are given to a wider and wider percentage of the population, there may be less hesitancy on the part of employees to be vaccinated. However there is still a level of uncertainty surrounding the COVID-19 vaccine and its side effects and efficacy such that, given the issues highlighted above, any blanket policy seems both unfeasible and discriminatory. Employers should consider their business needs (and those of their clients/customers) and health and safety obligations carefully before deciding on their approach to any vaccination policy and in the interim continue to provide employees with information whilst being mindful of personal choice.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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