The UK government has confirmed that it will not embark on mandatory vaccination for UK residents, which leaves open the question of whether employers could require staff to be vaccinated as a condition of attending work. The legality of this approach, and the fairness of taking disciplinary action in the event of non-compliance, like many things in employment law, is a question of what is reasonable.
Employers in healthcare will already be familiar with the requirements to offer vaccinations for other medical conditions to those working on the front line and in non-clinical roles in primary and secondary care settings and whilst roll-out of the Covid vaccine in this sector has been swift, it appears that only two-thirds of social care staff and four-fifths of NHS workers have taken-up the vaccine. Against this background, many employers may be considering “no jab, no job” policies to protect colleagues and clients/customers alike. But do such policies leave employers open to litigation risk?
What are the risks?
Assessments would need to be undertaken to determine whether a mandatory vaccination programme is a proportionate method of addressing the risk posed to staff and clients/customers, or whether other options are available. It may constitute a reasonable management instruction to have the vaccine where, for example, it is difficult to employ other safety measures such as social distancing, but situations such as these are likely to be rare, outside of healthcare, and employers would need to be mindful that any blanket approach could indirectly discriminate against certain groups, such as on the basis of disability or religion. A key battleground would be “anti-vaxxers” and whether an objection to vaccination could be considered to be a philosophical belief. Employers would need to consider how they would provide for these exemptions and whether these would reduce the effectiveness of the programme overall. At present, there appears to be insufficient evidence to recommend routine vaccination for pregnant women – meaning employers would need to consider how they would manage refusals from women who may be in the early stages of pregnancy and are not yet ready to make an announcement.
Prioritising certain groups within a workforce for vaccinations could also give rise to risk for employers if based on perceptions or assumptions about the level of risk of infection. For example, well-meaning employers hoping to offer priority vaccinations to those in certain age-groups or with particular risk factors could face discrimination claims if they inadvertently make assumptions that turn out to be incorrect. Whilst in theory, policies stating that vacancies will only be offered to vaccinated applicants may appear attractive, they are likely to indirectly discriminate against younger candidates, with older applicants currently more likely to have been vaccinated and therefore satisfy that requirement.
One particular area of pressure for employers could be third parties requiring that staff are vaccinated – for example, prior to accessing their sites. It has been suggested that members of the public may be required to demonstrate that they have been vaccinated to access public spaces such as air travel and sports events. Businesses providing individuals to work at such locations may also be asked to ensure that their staff also comply with this requirement. Employers would need to be mindful that they should not acquiesce to any instructions to discriminate, and that it might be necessary to make exceptions for some and/or reasonable adjustments for disabled employees who may not have been able to be vaccinated. Such circumstances will require careful discussion with third parties.
What if an employee refused a request?
If an employee refused consent for a vaccination, the employer would need to decide whether it was reasonable in the circumstances to take disciplinary action. This would depend on the reasons given for the refusal and the employer's justification for requiring vaccination in the first place.
A further potential for discord would be employees refusing to work with non-vaccinated colleagues if they themselves are unable to be vaccinated. Employers would need to bear in mind the competing interests of employees and consider whether alternatives, such as changing either or both employees' duties or work stations could resolve any disputes.
What can employers do?
It is likely to be far safer and less contentious for employers to promote take up of vaccines rather than to enforce roll-out, just as the government will be doing. Employers should be mindful of different viewpoints and take positive action to encourage reliable, fact-based information being given to employees. Employers could consider inviting in healthcare specialists to answer employees' questions to allay any concerns.
The potential pitfalls for employers also don't stop once a good proportion of employees have been vaccinated – staff who have received the jab may become more relaxed about safety measures such as social distancing, but it will be crucial for employers to reinforce the message that these arrangements are for the benefit of all, and still need to be maintained for some time yet. It will be important for the reassurance of non-vaccinated staff (who may not have been able to have the jab for medical reasons) that any breaches of safety measures are handled quickly and appropriately, by way of disciplinary action if required.
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