The roll out of the COVID-19 vaccine has been welcomed by most of the nation. In particular, employers and business owners are hoping that the uptake in vaccinations will make it much easier for businesses to open, stay open and not have to contend with staff shortages due to staff having to isolate due to exposure to COVID-19. After the 16 August, The Government has said that anyone who has had two doses of the vaccine will no longer need to self-isolate after coming into contact with someone who has COVID-19, in accordance with its belief that a double vaccine provides immunity.
There is evidence to suggest otherwise and whether those who have been vaccinated can still be carriers. However, the majority view is that vaccines will drive down the number of transmissions and contagions.
That said, there is still a way to go before all the adult population has had two doses and there are also questions to be answered about whether employers can insist that staff get vaccinated.
Organisations may well wish to encourage their employees to be vaccinated. There is no legal right to force employees to have a vaccination against their will and to do would give rise to human rights and criminal law issues.
The nature of the business, including the degree of contact that employees are expected to have with members of the public, could dictate that taking the vaccine is a 'reasonable instruction' by the employer, or included as part of their contractual obligations.
Take the care industry, as one example, employers here could argue that staff refusing to be vaccinated would put vulnerable care home users at risk. The same argument would not necessarily work in a different sector, where employees do not come into contact with people who are particularly at risk from the virus, or where they have been successfully working from home, without contact with colleagues.
If an organisation does issue a ‘reasonable instruction’ for staff to be vaccinated, it is vital that they engage and communicate clearly with all employees about why they are making this a reasonable instruction.
What if employees refuse to be vaccinated?
For those employees who issue a ‘reasonable instruction’ for vaccination or make it a contractual obligation, then there could ultimately be grounds to fairly dismiss an employee for refusing to be vaccinated, once, after a series of formal warnings, they refuse to comply.
Employers should not leap to dismiss an employee on these grounds, until they have, through those warnings, reached the conclusion that an employee is both unreasonably refusing to comply with a reasonable instruction and cannot do their job without putting lives at risk, unless they are protected from contracting and transmission of the virus by the vaccine.
This is area of employment law is sensitive, with fair reasons for the dismissal needing to be carefully deliberated and a consistency of approach between cases. Employers also need to look at alternatives to dismissal, for example remote working or changes to a role. Each of which could be regarded as a more reasonable alternative than dismissal.
As always, employers must be alive to the risk of discriminating against individual employees.
There is a real possibility that any dismissal for refusing to be vaccinated carries a risk of a discrimination claim. Protected characteristics which may be asserted include disability – for example an employee who has an underlying health condition and as such has concerns about the vaccine; specific religious beliefs and pregnancy.
Employers also need to be aware of potential claims for indirect discrimination. For example making it a blanket policy or contract condition that every staff member has to be vaccinated could indirectly discriminate against people with certain protected characteristics like a religion that prohibits vaccinations or objects to an ingredient in the vaccine (e.g. pig gelatine). This means that the employer would have to have a robust argument that vaccinations are carried out for a legitimate business reason (the health and safety of the work force or its customers) and the insistence on a reasonable instruction vaccination policy or contract provision is a proportionate means of achieving that legitimate business aim. One alternative scenario could be to segregate the work force into the jabbed and non-jabbed groups. But that is hardly likely to foster the legitimate aim of collaboration, team work and maintaining morale. So the employer could relay on the argument that compulsory jabbing is reasonable necessity and a proportionate means of achieving a legitimate aim, to fend off the indirect discrimination claim.
What else should employers consider?
As well as the employment law implications referenced above, there are also data protection issues to take into account. Employers should be mindful of being GDPR compliant when storing any health data about employees who have been vaccinated. Because anything to do with someone’s medical data is a special category of data that has to be processed fairly for the purposes of managing and administering the employment relationship and the protection of the health and safety of employees. If employers are insisting their staff get vaccinated, and any of them experience side effects, which the employer records, then they need to consider if it is absolutely necessary for the management and administration of the employment relationship for such data to be gathered and held.
This is new and unfamiliar ground for the vast majority of organisations and the subject of vaccination in general can be an emotive and sensitive one. As such, it is highly recommended that employers take expert legal advice before embarking on unilateral courses of action around vaccination policies without employee engagement.