The government’s “work from home” has ended and therefore, employers may be considering introducing a no jab, no job policy. This article shall consider the legal implications of attempting to enforce such a policy.
What are employers and employees’ health and safety duties?
All employers have a common law duty implied into their contracts of employment to take reasonable care for the safety of their staff and those foreseeably affected by their actions Employers have a duty to ensure “the health, safety and welfare at work of all” their employees and an undertaking to ensure their employees are not “exposed to risks to their health or safety”. Therefore, employers have a duty to provide safe systems of work. With regards to Covid-19 provide a safe system of work can mean:
- Social distancing
- Face coverings
- Regular testing
There is a duty on employees to co-operate and comply with reasonable and lawful instructions. However, what is reasonable will depend on the nature of the job and what is lawful will depend on the nature of the instruction.
What issues may arise?
Studies (Office of National Statistics report: Coronavirus and vaccine hesitancy, Great Britain: 28 April to 23 May 2021 (9 June 2021)) have shown that there is a clear disparity in vaccination hesitancy. 94% of adults reported a positive sentiment to the vaccine. However, there was more hesitancy reported amongst some ethnic minority groups with 21% of Black or Black British adults reporting hesitancy as compared with 6% of While adults and 7% of Asian or Asian British adults. There is also a disparity between religions as 11% of adults identifying as Muslim or Other reported hesitancy, compared with 5% of adults who identity as Christian and 2% who identify as Hindu. While there is no significant disparity between men (7%) and women (6%) regarding vaccine hesitancy, of the 6% that stated they were hesitant, 32% cited fertility as their reason.
Therefore, it is clear that if employers are to enforce a blanket mandatory vaccination policy, there is potential for discrimination claims. To avoid this, employers will need to ensure that their policies are drafted carefully with appropriate exceptions and will need to be capable of being objectively justified.
When objectively justifying a policy, reference will be given to the specific facts of each situation, for example:
- The nature of the work
- The need to protect colleagues and members of public
- Future legislation
- Other less onerous measures available
With regards to pregnancy discrimination, the current guidance from Public Health England in relation to pregnant women is that they should be offered the vaccine and that vaccinations can be received by women who are breastfeeding.
Questions have also been raised as to how employment tribunals would rule if they were asked to consider whether being a vaccine sceptic would be a belief under the Equality Act 2010. If it were to be held as a belief, those who shared that view would be protected from discrimination and harassment on ground of being an “anti-vaxer”.
In 2018 the Tribunal expanded the definition of “belief” to beyond religion to include veganism (Casamitjana v the League Against Cruel Sports 2018). Therefore, it is possible that although being an anti-vaxer is not a religious belief, it may still be held as a belief for the purposes of discrimination and harassment under the Equality Act 2010.
Another discrimination concern is in relation to partial or full vaccinated employees.
The government’s vaccination roll out plan prioritised older individuals. As a result, generally speaking, older employees are more likely to be fully vaccinated than younger employees. Therefore, any policy which treats fully vaccinated employees differently from partial vaccinated employees may be indirectly discriminatory on grounds of age.
Further, while the government have not produced a list of individuals exempt from vaccination, there may be situations where individuals are advised by their GP not to take the vaccine if they are allergic to one of the ingredients. This shall be judged on a case-by-case basis.
Can employees be required to have the Covid-19 vaccine?
The government have not introduced legislation that requires individuals to be vaccinated.
However, after a consultation on 16 June 2021, the government announced its intention to require all CQC regulated care homes in England to only allow entry inside their property to those who are fully vaccinated or are exempt from vaccination. This requirement is not only for care home employee’s but for any professionals visiting, such as tradespeople, hairdressers and CQC inspectors.
Requiring employees to be vaccinated is more invasive than requiring them to use PPE and unions have criticised mandatory vaccination citing fears that it may lead to a culture of worker-blaming, taking away from the employer’s obligation to ensure a safe working environment.
In relation to existing employees, the employer’s ability to required them to be vaccinated will depend on the terms of the contract of employment, specifically terms relating to the issuing of instructions to employees and the compliance with employer’s policies.
However, employers must be aware that unilateral changes to employees’ contract of employment may provide employees with the grounds to resign and claim constructive unfair dismissal. ACAS guidance states that the refusal to have the vaccines may be the basis for disciplinary action or dismissal. However, this would have to be objectively justifiable to prevent discrimination and unfair dismissal claims as detailed above.
Employers may be able to insert a term into new employees’ contracts making the vaccination a condition of employment. However, discrimination claims may be brought if a job applicant believes they have been discriminated against in the recruitment process. Therefore, to make the vaccination a requirement of employment would have to be objectively justifiable to prevent discrimination claims.
Supporting staff to get the vaccine
If an employee expresses that they do not want to be vaccinated, employers should listen to their concerns. Employers may find it useful to have open, honest conversations with their employees about the benefits of being vaccinated and how they can support them. For example:
- Providing employees with the government’s latest vaccine health information
- If staff will be given paid time off to receive the vaccine
- Where staff can receive the vaccine
- Not counting vaccine-related absences in absence records or towards any ‘trigger’ systems the company may have.
It is best for employers to support their employees having the vaccination without forcing them.
For guidance on employment law or for employers who would like advice and assistance with ensuring that they comply with their health and safety Covid-19 obligations or the preparation of a Covid-19 vaccination policy and want to speak to an expert employment lawyer should feel free to contact our team via email at email@example.com or telephone on 02079036888.