This article covers what is reasonable, disciplinary procedures and discrimination claims.
The roll out of the Covid-19 vaccine programme has brought new hope to individuals and employers that working life will return to something approaching normality in the next few months. The question which some employers are already asking themselves is: can we make vaccination against Covid-19 compulsory for our employees?
This is a multi-faceted question and one to which there will not be a simple answer. A key point to note is that we are at an early stage in the vaccine programme and access to the vaccine is far from universal. Even when the vaccine is more widely available, the scientific view on the effectiveness of the vaccine in preventing transmission, serious illness and death is likely to be subject to change as new variants emerge and research continues.
Employers will need to tread extremely carefully when considering a policy of compulsory vaccination and be prepared to make adjustments to any such policy to reduce the risk of grievances, disputes and claims. Employers should also consider the wider reputational risks of social media and press interest in such a policy, particularly where there is significant opposition to it from employees.
We set out here the key considerations for employers who may be contemplating such an approach.
Is it reasonable to mandate the vaccine for employees?
Employers have an overall duty to act reasonably towards their employees, taking into consideration the particular circumstances which apply to the employee and the employer.
Assuming there will come a point where all employees can access the vaccination, the question of whether compulsory vaccination is a reasonable requirement is one which will need consideration in the round. A requirement to take a vaccine and disciplinary action for any refusal could be unreasonable in some circumstances. For example, where an employee has reasonable concerns about taking the vaccine.
Where employers act unreasonably, there is a risk that employees could resign and bring constructive dismissal claims based on a breach of "trust and confidence". This claim is based on the implied term in all employment contracts that employers and employees must not, without reasonable and proper cause, act in a way which is likely to damage or destroy the relationship of mutual trust and confidence between them.
The question then will be whether the employer has reasonable and proper cause to require the employee to be vaccinated or to take steps to discipline them if they do not. This would include considering the role the particular employee is carrying out; the risks to customers, service users or other staff which the employer is concerned to mitigate; the evidence on which the employer has decided to make the vaccine a requirement; and whether there is another way of mitigating the identified risks which would have less impact on the employee?
Disciplinary procedures for refusing to take the vaccine
Where an employee refuses the offer of a vaccine, could an employer start a disciplinary process and even dismiss fairly for this refusal?
As with any potential disciplinary issues, it will be important that employers have clearly communicated to employees the relevant rules or policy concerning vaccination, including explaining why this rule has been put in place. Consultation on such a policy with staff or their representatives will improve the chances that the policy is widely accepted and address key staff concerns, including consideration for special circumstances.
Employers should always begin by discussing with concerned individuals their reasons for not taking the vaccine before deciding whether to take any formal step, including beginning a disciplinary procedure.
Suspending, disciplining or dismissing an employee for a refusal to have the vaccine is likely to lead to grievances, and employers could well face employment tribunal claims for unfair dismissal, constructive dismissal and discrimination after taking such action.
It is important to note that some of the reasons why employees do not wish to take the vaccine will be linked to protected characteristics under the Equality Act 2010. The risk of discrimination claims arising from a blanket policy on mandatory vaccination is therefore considerable.
Employees with certain health conditions may not be able to, or may not wish to, take the vaccine and may be able to argue that the policy or action arising from it discriminates against them because of a disability or something connected to a disability.
Advice for pregnant women from the Joint Committee on Vaccination and Immunisation has recently changed to suggest that they can have the vaccine if they are at high risk from the virus. However, those who are pregnant are not routinely being offered the vaccine and may also be able to show that they are indirectly discriminated against by imposing such a policy.
The vaccination may raise concerns for employees with particular religious beliefs or philosophical beliefs, for example because of concerns about products used in the vaccine-making process or because of a belief-based objection to the practice of vaccination itself. In reality, it will be difficult for employers to be able to assess whether an employee's beliefs would be found by a tribunal to be protected under the Equality Act 2010. Case law indicates that a philosophical belief will be protected if:
- it is genuinely held;
- it is not just an opinion or view based on the present state of information;
- it relates to a 'weighty and substantial' aspect of human life and behaviour;
- it is sufficiently cogent, serious, coherent and important; and
- it is worthy of respect in a democratic society and not incompatible with human dignity or conflict with the fundamental rights of others.
More extreme "anti-vaxxer" views may not be protected if they lack coherence and are found not to be worthy of respect in a democratic society. However, proceeding on the basis that a particular belief will not be protected could be risky and lead to significant litigation costs and reputational risks.
Indirect discrimination claims can be defended if the policy in question can be shown to be a proportionate means of achieving a legitimate aim. To succeed in such a defence, employers would need very sound business reasons for mandating the vaccine, supported by documentary evidence of those reasons. Where the employee has good reasons for refusal and the discriminatory impact on the employee is significant, it is unlikely that an employer would be able to justify mandatory vaccination in all cases.
The health and safety duties of employers
Employers have a statutory duty to protect the health, safety and welfare at work of their employees as far as is reasonably practicable. This includes duties to assess the risks impacting on staff in their work, to consult on health and safety issues, to create a safe system of work, to ensure that system is properly implemented, and to have a regular programme of review.
Encouraging employees to accept a vaccination when available and providing them with accessible information about the vaccine will certainly be part of an employer's reasonable steps to manage and mitigate the risks of Covid-19 in the workplace. However, particularly in the short and medium term, encouraging staff vaccination will be only one of a suite of control measures. And, as set out above, there will be a number of categories of employees who may have good reason not to take up the offer of vaccination.
Because of the significant reputational and legal risks here, we highly recommend that employers take specific legal advice when considering a policy or risk assessment including compulsory workforce vaccination for some or all staff.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.