By Nick Hobden, head of employment at law firm Thomson Snell & Passmore (www.ts-p.co.uk)
The roll out of the new COVID-19 vaccine has been welcomed by many across the country. In particular, employers and business owners are hoping that once the vaccine programme has been rolled out, their staff can come back to the workplace, ‘en masse’.
This does raise questions about whether employers can insist that staff get vaccinated. This is especially so when reports show that roughly a third of people in the UK would be reluctant to have the new vaccine, in spite of well publicised pictures of the vulnerable elderly embracing the vaccine with one of their arms.
Organisations may well wish to encourage their employees to be vaccinated. There is no legal right to force employees to have a vaccination against their will and to do would give rise to human rights and criminal law concerns.
The nature of the business, including the degree of contact that employees are expected to have with members of the public, could dictate that taking the vaccine is a ‘reasonable instruction’ by the employer, or included as part of their contractual obligations.
Take the care industry, as one example, employers here could argue that staff refusing to be vaccinated would put vulnerable care home users at risk. The same argument would not necessarily work in a different sector, where employees do not come into contact with people who are particularly at risk from the virus, or where they have been successfully working from home, without contact with colleagues.
If an organisation does issue a ‘reasonable instruction’ for staff to be vaccinated, it is vital that they engage and communicate clearly with all employees about why they are making this a reasonable instruction.
WHAT IF EMPLOYEES REFUSE TO BE VACCINATED?
For those employees who issue a ‘reasonable instruction’ for vaccination or make it a contractual obligation, then there could ultimately be grounds to fairly dismiss an employee for refusing to be vaccinated, once, after a series of formal warnings, they refuse to comply.
Employers should not leap to dismiss an employee on these grounds, until they have, through those warnings, reached the conclusion that an employee is both unreasonably refusing to comply with a reasonable instruction and cannot do their job without putting lives at risk, unless they are protected from contracting and transmission of the virus by the vaccine.
Each case would need to be considered on its individual facts and circumstances, with fair reasons for the dismissal carefully deliberated and a consistency of approach between cases. Employers also need to look at alternatives to dismissal, for example remote working or changes to a role. Each of which could be regarded as a more reasonable alternative than dismissal.
As always, employers must be alive to the risk of discriminating against individual employees.
There is a real possibility that any dismissal for refusing to be vaccinated carries a risk of a discrimination claim. Protected characteristics which may be asserted include disability – for example an employee who has an underlying health condition and as such has concerns about the vaccine; specific religious beliefs and pregnancy.
Employers also need to be aware of potential claims for indirect dis- crimination. For example making it a blanket policy or contract condition that every staff member has to be vaccinated could indirectly discriminate against people with certain protected characteristics like a religion that prohibits vaccinations or objects to an ingredient in the vaccine (e.g. pig gelatine). This means that the employer would have to have a robust argument that vaccinations are carried out for a legitimate business reason (the health and safety of the work force or its customers) and the insistence on a reasonable instruction vaccination policy or con- tract provision is a proportionate means of achieving that legitimate business aim.
WHAT ELSE SHOULD EMPLOYERS CONSIDER?
As well as the employment law implications referenced above, there are also data protection issues to take into account. Employers should be mindful of being GDPR compliant when storing any health data about employees who have been vaccinated. Because anything to do with someone’s medical data is a special category of data that has to be protected. If employers are insisting their staff get vaccinated, and any of them experience side effects, which the employer records then they need to consider if it is absolutely necessary for the management and administration of the employment relationship for such data to be gathered and held.
This is new and unfamiliar ground for the vast majority of organisations and the subject of vaccination in general can be an emotive and sensitive one. As such, it is highly recommended that employers take expert legal advice before embarking on any course of action around vaccination policies.