By Andrea Thomas, Partner at HCR Law (www.hcrlaw.com)
The roll out of the Covid-19 vaccines is now gathering pace and, despite a slow start, it is now looking as if the government may meet its target of delivering the vaccine to the most vulnerable groups and front line health and social care staff by mid-February. This is undoubtedly great news and we hate to look at the downside. However, as predicted in our earlier articles, the “anti-vaxx” movement has had an impact and a sizeable minority are rejecting the vaccination.
The Times has recently reported that as many as one in six people are opposed to having the vaccination and that increases significantly amongst ethnic minority groups and in the 18 to 24 year old age group. This is of universal concern as it puts the goal of herd immunity in jeopardy. However, this is of particular concern to the care sector where employees are likely to be working with the most vulnerable groups and where infection rates in care homes are again rising sharply. The Times reports that the National Care Association is seeking a legal opinion on whether care home workers can be forced to have the vaccination.
So, what is the position of an employer faced with employees who refuse to have the vaccination?
CAN AN EMPLOYER REQUIRE EMPLOYEES TO BE VACCINATED AGAINST COVID-19?
For some employees, this will be a sensitive issue that will require careful communication with both the employees and (where applicable) their staff representatives.
The government has not legislated that the Covid-19 vaccine is mandatory, so it is risky for employers to insist on vaccination, even in an environment where there is often close contact and social distancing can be difficult.
ACAS has produced guidance which advises that employers should support staff in getting the vaccine but cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is required for someone to do their job, for example where they travel overseas and need to be vaccinated.
We look at some of the issues in more detail below.
ENCOURAGEMENT AND SUPPORT
Undoubtedly, the best outcome for both parties is for employees to agree to vaccination without the employer having to resort to a policy of mandatory vaccination. But a great deal of misinformation is being spread about the vaccine, particularly on social media and this may be influencing employees. It is perhaps no coincidence that the youngest age group is the most hesitant, as they will be the most frequent users of social media. Misinformation is also being spread about the use of certain animal products in vaccines, which will be of particular concern to some religious groups.
Employers should therefore engage with those employees who are refusing the vaccine in order to address and overcome their fears. As part of this process, they may wish to consider involving an independent party, such as a medical professional, to give informed and unbiased advice on the vaccine itself and the benefits of having it.
THOSE WHO STILL REFUSE
There may still be employees who refuse the vaccine despite the best efforts of employers to persuade them otherwise. Can employers force these individuals to have the vaccine? In reality, they cannot, as the administering of a vaccine is a medical procedure which can only be performed with an individual’s genuine consent. However, could an employee be disciplined for refusing? We would suggest not, as it is not a legal requirement for anyone to be vaccinated and it is most unlikely that current employment contracts would contain a provision requiring an employee to be vaccinated. A refusal to have the vaccine is therefore unlikely to amount to misconduct.
Some employers may want to consider whether existing employment contracts can be amended to include a provision that requires employees to be vaccinated as a condition of employment. However, as with any significant amendment, this will require employee consent. As consent is unlikely to be given, the change would probably have to be imposed and employers may have to dismiss the employees and offer to re- engage them on the new terms. This is not without risk and employers would have to establish a fair reason for dismissal in order to avoid unfair dismissal claims by those employees with more than two years’ service.
In these circumstances ‘some other substantial reason’ (SOSR) is likely to be the fair reason relied upon. It is possible that some employers would be able to establish that the need to ensure that all employees are vaccinated does amount to SOSR, particularly where employees work with vulnerable groups such as in the health or care sector. However, we would emphasise that at present this point is completely untested and it is difficult to predict what view a tribunal would take. Employers would also need to demonstrate that they had followed a fair process before imposing the change. Depending on the circumstances there may also be additional risks which we consider briefly below.
Where employers are considering a policy of mandatory vaccination, other risks could include:
- Collective consultation – if employers need to dismiss 20 or more employees, the statutory consultation requirements are likely to be engaged and the employer would also need to inform the Secretary of State within the statutory timescales (which depends on the number of affected employees).
- Any available vaccine may not be suitable for all e.g. those with suppressed immune systems. In order to avoid arguments of disability discrimination (where an employee is unable to get the vaccine because of a health condition) any requirement would therefore need to allow for exceptions.
- It is also possible that certain religious or moral objections to the vaccine could come under the protected characteristic of religious or philosophical belief. There may also be a question as to whether ‘anti-vaxxers’ are covered by philosophical belief.
- Human rights arguments – it is possible that employees forced to have the vaccine could bring a challenge under the Human Rights Act.
For employees who are eligible for the vaccine, introducing a contractual requirement that they have it would amount to a change in terms and conditions and so has added complexity and risk. An ‘encouragement and support’ approach is therefore favoured wherever possible, rather than insisting upon it as a contractual term.