Currently, as the UK goes through its priority groups, we are not yet in a situation where everyone has had the opportunity to be vaccinated (whether they wish to be or not). In particular, the priority groups are primarily set on the basis of age. Therefore introducing a mandatory vaccination policy now would likely be unworkable and would likely be indirect discrimination on the basis of age. Most younger people would not be able to comply with the policy simply because they do not have access to the vaccine.
Even once all age groups are vaccinated, it is unlikely that a blanket requirement that the entire workforce should be vaccinated will be considered lawful. Particularly given that the Government has confirmed that the COVID-19 vaccine will not be mandatory. Also, ACAS guidance (available here) advises that employers should support staff in having the Coronavirus vaccine, but they cannot force staff to be vaccinated.
A blanket requirement risks both unfair dismissal and discrimination claims. Therefore, in the majority of cases, employers will benefit from encouraging workers to take the vaccine and stressing its importance, rather than requiring them to take it.
However, there are some circumstances where it may be considered lawful, and we consider these below.
In what circumstances might we make the vaccine mandatory?
UK employers have obligations under health and safety law to reduce health risks to employees and others to a level which is as low as reasonably practicable. Therefore the vaccine should be considered as part of Covid-19 risk assessments, as a potential measure to control the risks associated with contracting the virus at work.
Employers may decide, following such a risk assessment, that having staff in particular roles vaccinated is necessary and reasonable in reducing the risk. For example, an instruction to a care worker to have a vaccine may be much more reasonable and justifiable than it would be for office staff who can work from home. Further, in the care sector, for example, a policy of mandatory vaccination in certain sectors is more likely to be justified for purposes of indirect discrimination on objective grounds to protect the vulnerable.
The reason for the requirement to have a vaccine needs to be considered carefully on a case by case basis. A flexible and nuanced approach will reduce the risk of employment claims.
What are the potential legal risks if we make vaccination mandatory?
The main legal risks for employers if they require the workforce to be vaccinated are unfair dismissal and discrimination claims.
Individuals with protected characteristics could potentially be discriminated against. If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may also be able to claim constructive or actual unfair dismissal.
It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with high costs for the employer.
Disability: Some individuals may be advised not to have the vaccine due to an existing medical condition or allergy, or they may be unable to take it due to a disability. Such individuals maybe considered disabled and they may be treated less favourably than their colleagues should an employer require vaccination. They could bring a direct discrimination claim if they suffer detriment as a result. Employers also have a duty to make reasonable adjustments for disabled employees.
Pregnancy and maternity: Expectant mothers have also been advised not to have the vaccine. Employers therefore need to ensure that any vaccination instructions or policies cover pregnant women in order to avoid indirect discrimination. It would also be prudent to take into consideration the fact that many women choose not to tell their employer of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine.
Age: Any differences in treatment between vaccinated and unvaccinated staff could be indirectly age discriminatory unless the treatment can be objectively justified. This is because the vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first. Therefore older workers will be required to have the vaccination at an earlier date.
Religion or belief: An anti-vaccination stance could amount to a protected philosophical belief and therefore attract protection. A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society.
If an employee refuses to follow an instruction to be vaccinated, an employer could start disciplinary proceedings and ultimately dismiss the worker. However, dismissal is only likely to be fair if the employee has unreasonably refused to comply with the employer’s request to have the vaccine. Employers should be careful therefore that requiring the employee to be vaccinated is a necessary and reasonable precaution to take in reducing the health risk. As always, the employer should give careful thought to whether there are any reasonable alternatives to dismissal (e.g., reallocation to a role where non-vaccination would not be problematic or working from home arrangements).
Employer’s should also consider that an employee faced with a “no jab, no job” scenario could resign in response to this requirement and claim constructive unfair dismissal. Such claim may well succeed if the requirement was unreasonable.