With two vaccines now approved for use in the UK - Pfizer/BioNTech and Oxford/AstraZeneca – and Moderna coming onstream shortly, the roll-out of Covid-19 vaccination is getting underway as we head into the New Year.
Although the focus at the moment is on vaccinating those most at risk of coronavirus, and it is likely to be some months before the vaccine is commercially available, employers will be starting to think ahead about the implications for their staff and the workplace.
This article explores some of the employment law issues that employers should be mindful of when considering implementing vaccination policies and particularly the question of whether vaccination can be made mandatory for staff.
The government has been clear that vaccination won’t be a legal requirement and it is likely that this will prevent most employers from insisting that their employees are vaccinated. The Acas guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated. It is acknowledged however, that it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, for example if they work with vulnerable people or travel overseas. Every business is different, and thus whether an instruction to an employee to take the vaccine could be regarded as a ‘reasonable management instruction’ on the part of the employer will depend on the circumstances.
It is also worth noting that under health and safety law, employers are obliged to take reasonable steps to reduce any workplace risks. Arguably, employers should at least be encouraging their employees to be vaccinated to protect themselves and those they work alongside. In theory, if an employer can show that being vaccinated is the most reasonably practicable way of mitigating the risk of COVID-19 in the workplace, having carried out a thorough risk assessment, it could stipulate vaccination as a health and safety requirement. However, to then say that an employee is committing a health and safety breach if they refuse to get the vaccine could be a risky approach however, given that the government is not itself making the vaccination mandatory, and because of the potential for discrimination claims.
It is likely that many employers will be faced with employees who object to being vaccinated for a wide variety of reasons. There are a number of approaches employers may adopt which could lead to employees advancing a discrimination claim such as not permitting an employee to return to the workplace until they have been vaccinated, deciding not to pay sick pay to an employee who has refused the vaccine and subsequently becomes ill with COVID-19 or where there is any unjustified differentiation in treatment between employees who have or have not been vaccinated.
A number of protected characteristics may be relevant in this context:
- Age: young workers will not be offered the vaccine for some time, with the older population being prioritised.
- Disability: some individuals will be advised not to have the vaccine due to an underlying medical condition.
- Religion or belief: some may subscribe to an ‘anti-vax’ viewpoint and it is possible, though unlikely, that a specific belief against vaccinations could be protected. From a religious perspective, some Christian faith healing denominations have a theological objection to vaccination.
Even if an employer makes it a contractual requirement for employees to be vaccinated, refusal by an employee to do so does not automatically allow the employer to take disciplinary action or dismiss. Employment tribunals are likely to sympathise with employees who are dismissed or disciplined as a result of refusing to be vaccinated and are unlikely to consider any refusal to be vaccinated as a material breach of contract entitling the employer to dismiss the employee.
As with the question of mandatory vaccination, whether an employer is justified in taking disciplinary action against an employee will depend on the circumstances, including the nature of the employee’s role, if the employee’s role can be altered to accommodate the fact that they have not been vaccinated, or if they can be redeployed. Even then, employers will need to be mindful of avoiding situations where vaccinated staff feel at a disadvantage compared to unvaccinated staff (or vice versa), for example because they have been given additional duties or on the other hand had fewer opportunities to take on additional duties.
What can employers do to prepare?
In view of the risks of a mandatory vaccination programme, employers should start to consider how best to achieve voluntary vaccination. An internal communications strategy will play a key role here and employers should ensure they provide clear information to employees about the vaccine programme as well as signpost staff to further credible sources of information. It will be particularly important to support and guide those employees who have concerns about the vaccine.
Employers should also start identifying those roles which can continue to be performed effectively from home, those which can be safely performed in the workplace with Covid-secure arrangements in place and also whether there are any employees whose roles may reasonably justify a requirement to have a vaccination in order to be performed. Employers should undertake risk assessments in this regard.
Crucially, workplaces must continue to maintain the safety measures that are already in place. Vaccination will not be available to all employees for a significant period of time and in any case should be used alongside Covid-secure practices particularly as there is no certainty that the vaccine prevents transmission of the virus.
For more information on any of the items raised in this article please contact our employment team who will happy to assist.