As the vaccine continues to be rolled out in the UK, some employers are seeking to make it a condition of employment to have the COVID-19 vaccination. The government seems to be moving towards allowing some employers to make the vaccine compulsory for some workers (such as care home workers). Our solicitors, Thompsons, have provided the following comment and guidance, as we ask whether your employer can do this and if so, what rights do workers have?
It is important to put the coronavirus (COVID-19) vaccine into context. Firstly, it is only available on the NHS so employers cannot buy private vaccines. Secondly, the roll out is only available to those in the priority groups identified by the Joint Committee on Vaccination and Immunisation (JCVI) meaning that a large proportion of the population have not yet been offered the vaccine and are unlikely to be offered it until later this year. Thirdly, the medical evidence is that the vaccine does not prevent coronavirus (COVID-19), nor is it yet clear that having the vaccine contains transmission.
It is also worth noting the context and in particular that the government has made it clear that it is opposed to making the vaccine mandatory. Indeed, section 43E of the Public Health (Control of Disease) Act 1984 specifically prevents it from making regulations which require a person to undergo mandatory medical treatment, including vaccination.
Set against this background, it is clear that employers cannot physically force people to have the vaccine and if they did, it would be both a civil and criminal offence. However, none of this necessarily prevents an employer from seeking to change employees’ contracts to make it a condition of employment that they have the vaccine or disciplining and dismissing those who do not have it.
Changing contracts of employment
It is a fundamental principle of contract law that any changes to the contract must be agreed between the parties. Any changes which are imposed amount to a breach of contract.
An employer seeking to change the contracts of 20 or more employees at one establishment within a period of 90 days via a dismissal and re-engagement process to introduce a requirement for a mandatory vaccine is required to consult collectively with the appropriate representatives. This can be a union where one is recognised or elected representatives where there isn’t. A failure to consult collectively could render the employer liable to pay 90 days’ pay in compensation to each employee.
Given these potential hurdles an employer may instead seek to only make it a condition of employment for new employees to have the vaccine. However even this is not straightforward and may for example lead to potential claims for discrimination, dealt with in more detail below.
Disciplining and dismissing employees
An employee may be disciplined and/or dismissed for failing to follow a reasonable management instruction. Only employees with two years’ continuous service can bring a claim for unfair dismissal.
Employers may seek to argue that an employee who refuses a request to have a vaccine is refusing to comply with a reasonable management instruction to protect employees and the health and safety of others. Whether the refusal is reasonable will depend on all the circumstances including an assessment of the job the employee is required to do, the extent to which other colleagues are put at risk and the extent to which third parties such as customers, clients, patients and service users are at risk.
An employer’s risk assessment which is mandatory under the Management of Health and Safety at Work Regulations 1999 should address the risk factors, be regularly reviewed and a copy provided to employees and the union where one is recognised.
The extent to which the employer has put other preventive measures in place to reduce the risk of exposure to coronavirus (COVID-19) in the workplace (such as social distancing, safe systems of work, PPE and access to handwashing facilities) is a relevant consideration, as are the reasons why an employee is objecting to the instruction to have a vaccine.
It may be reasonable for pregnant women to refuse to have it. Guidance by Public Health England entitled ‘The safety of COVID-19 vaccines when given in pregnancy’ advises that as the vaccines have not yet been tested on pregnant women, they should not routinely have them although women in the high risk categories may choose to do so. The Royal College of Midwives has produced guidance and advice for pregnant women on coronavirus (COVID-19) and vaccines which is available here.
Similarly, people who have had an allergic reaction to the first dose or who are allergic to any of the components of the vaccine have been advised not to have it. In some cases, people with a pre-existing health conditions such as HIV, or people with weakened immune systems, may be advised not to have it.
Those who are unsure about the medical consequences of having the vaccine should speak with their medical practitioner. In the rare circumstances of being advised not to have the vaccine, it would be prudent to obtain a copy of the letter to show to an employer.
Where an employee is concerned that the measures taken to reduce exposure are inadequate, they should raise this with their employer. They should also seek advice and guidance from their union. The employer is expected to investigate any concerns and report back to the employee and the union where one is recognised.
Where concerns were raised about a failure to undertake a risk assessment or to take other coronavirus (COVID-19) preventative measures – and these were not investigated before a decision to discipline or dismiss was taken – this will be a relevant consideration when determining if a dismissal for failure to follow a reasonable management instruction was fair.
Where an employee is disciplined, they should appeal against the decision, setting out why the request to have a vaccine was unreasonable because of their personal circumstances, such as having a supressed immune system or being pregnant.
Where an employee who has two years’ continuous service is dismissed because they refused to have a vaccine, the employer may argue the dismissal is for a fair reason, namely misconduct or some other substantial reason.
Dismissal on the ground of misconduct may be fair provided the employer had a reasonable belief in the employee’s misconduct, that belief was based on reasonable grounds after having conducted a reasonable investigation and dismissal is within the band of reasonable responses. The investigation should cover all the relevant facts such as the nature of the job, the other preventative measures in place, and the personal circumstances of the employee and an assessment of the risks.
Dismissal for some other substantial reason where the real reason is because the employee refused to have a vaccine, may end up with the tribunal finding the reason is one of conduct and requiring the employer to meet the test above.
Where the other substantial reason is because the employee refused to agree a change to the contract to include a requirement to have a vaccine, the employment tribunal will need to assess whether the employer acted reasonably in accordance with equity and the substantial merits of the case. Employees should have been consulted and alternatives to dismissal considered.
Employers will also need to take into account the employee’s human rights such as the right to respect for private and family life.
An employer who makes it a condition of employment to have a vaccine may be discriminating against a worker under the Equality Act 2010. Similarly, an employee who is dismissed for refusing to have the vaccine may be held to have been discriminated against. The right not to be discriminated against applies from day one in employment and covers workers, not just employees.
It is likely that a requirement to have a vaccine amounts to a provision, criterion or practice which puts individuals with a protected characteristic at a particular disadvantage when compared with others who do not share that protected characteristic.
Examples of those with a protected characteristic who could be put at a particular disadvantage include:
- Age – younger workers who do not fall within one of the priority groups and therefore do not yet have access to the vaccine
- Pregnant people
- Workers with a disability such as those with suppressed immune systems or those who have a mental health condition
- Race – in particular research by SAGE ‘Factors influencing COVID-19 vaccine take up among minority ethnic groups’ dated 17 December 2020 found that minority ethnic groups were more likely to be hesitant to accept the vaccine
The discrimination in the circumstances above would be indirect allowing an employer to justify the discrimination on the grounds that the requirement to have a vaccine was a proportionate means of achieving a legitimate aim.
The protection of the health and safety of other workers, clients, customers and service users is likely to be held to be a legitimate aim. Whether it is proportionate will depend on whether there are less discriminatory alternatives to minimise the risk such as protective measures including PPE, ensuring social distancing and safe working practices considering homeworking, alternative work and reallocating certain duties.
Over the last year, information about the spread of coronavirus (COVID-19), the restrictions which are required to curb its spread and now the vaccine itself have changed on a regular basis. In these uncertain times a collaborative approach is key, and employers should be working with unions to consider what measures can be introduced to reduce workplace risks and how best to achieve maximum voluntary vaccination within their workforces.