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25th March, 2021

Can employers require workers to have a COVID-19 vaccination?

CanemployersrequireworkerstohaveaCOVID vaccination?

Vaccinations are currently a huge talking point and with many NHS and other workers being required to have it, there is a question in the minds of many individuals working in other sectors outside of the health sector:

“Can my employer require me to have a COVID-19 vaccination and prevent me from working if I don’t?”

Why would an employer adopt a ‘no jab, no job’ policy?

It has been a hot topic of conversation over the last few weeks that company Pimlico Plumbers have put in place a ‘no jab, no job’ policy, requiring their workers to have the COVID-19 vaccination should they work in a client facing position. If the worker refuses to have the vaccination or cannot show proof of vaccination, they are refused the work. They now appear to be inserting provisions into their contracts to reflect this.

This news has left a lot of workers nervous, concerned and questioning whether they will also be placed under the same pressure from their employers, and what will be the consequences if they refuse to have the vaccination.

Whether it is appropriate for an employer to adopt a vaccination approach like that of Pimlico Plumbers will depend on the type of work that the worker undertakes, and the level of client facing exposure that they may have.

For example, if workers come face to face with individuals in the most medically vulnerable categories, it is more likely that an employer will put in place a policy along these lines. Also, if the worker is required to continuously work in publicly accessible places where they are likely to come into contact with members of the public, it is likely that an employer may be considering adopting some form of COVID-19 vaccination policy.

Can an employer put in place a vaccination policy?

A company may decide that it wishes to put in place a vaccination policy.  Before doing so, we would strongly recommend that consideration is given to:

  • Why is the policy required?
  • Are some, or all, of the workers client facing?
  • What concerns may arise from workers in respect of such a policy and how could they be addressed?
  • Would vaccinations be required for all individuals?
  • What other COVID-19 measures have been put in place to minimise the risk of infection and are these working?
  • How many workers have already received the government vaccination?
  • Should the vaccination policy be compulsory or voluntary?
  • Is it reasonable to put in place a vaccination policy?
  • Are some workers likely to have medical reasons preventing them from having the vaccine?

Businesses have an obligation to weigh up the needs of their workers against the needs of the business and, provided they have carried out a proper risk assessment, may be able to argue that the protection of their staff and customers/clients is of overriding importance to them.  No one size policy should fit all organisations and whilst a vaccination policy may be appropriate in one organisation, this does not mean it is appropriate throughout every business. We would strongly recommend taking advice before putting in place a compulsory vaccination policy for all staff.

When deciding whether to adopt such a policy, an employer must also have consideration to the rights of their workers. A requirement to undergo medical treatment (such as a vaccination) may amount to interference with the workers right to respect for private life. For this interference to be justified, there must be a legitimate aim in requiring the vaccine. A business could argue that their legitimate aim is the need to protect the health of the public, but whether this will be accepted by the courts will be based on the specific circumstances of the matter and these circumstances will be heavily scrutinised. The courts will not view any claims of this nature lightly, and there could be serious consequences for any business breaching the human rights of their workers. Again, we would highly recommend seeking legal advice on this matter before issuing any vaccination requirements throughout the company.

Can a worker object to the policy?

Workers may have concerns about a vaccination policy.  Consideration should be given to the queries above and whether, having undertaken a risk assessment, vaccinations is still considered to be appropriate for the industry. If a worker raises any concerns, it would be appropriate to discuss this with them informally.  Workers personal concerns over having vaccines, whatever the reason, should be considered. Businesses should explain their reasoning for putting in place a vaccination policy, whether it is applicable to all workers in the business and provide information on the risks and benefits of the vaccination that they are basing their decision on.

Can a worker be refused work or dismissed if they object to a vaccination?

If a business wishes to dismiss an employee because of their refusal to have the vaccine, then the employer will have to follow the normal fair dismissal procedures and have a potentially fair reason for dismissal. There are five potentially fair reasons for dismissal, and an employer must be able to argue that an employee’s refusal to have the vaccination falls into one of these. The five reasons for dismissal are: capability, conduct, redundancy, illegality or ‘some other substantial reason’. Of course, as this pandemic is unprecedented, there is not much case law surrounding this matter, but it is likely that an employer may state that any dismissal based on the grounds of a refusal to have a vaccination could fall under conduct, capability or some other substantial reason for dismissal.

We would stress that whether a dismissal is fair would come down to the individual facts and whether, considering the nature of the business, it is reasonable to insist on a vaccination and/or for the employee to refuse one.  For example, an employee who cannot have a vaccination for medical reasons may also be protected under the Equality Act 2020 and a dismissal may amount to disability discrimination if the vaccination cannot be objectively justified. Consideration should also be given to refusals by pregnant workers. Public Health England has advised that those who are pregnant, or who are planning a pregnancy within three months of the first dose, should not yet have the vaccination. Such employees are likely to be protected from maternity discrimination under the Equality Act 2010 if they are dismissed, or subject to a detriment for refusing to have a vaccine.

If the role is client facing, particularly working with vulnerable individuals and there is no alternative to this, then an employer may be able to rely on a refusal to abide by the policy as grounds for dismissal.

In respect of workers, whether they can be refused work will come down to the contractual arrangements and again could still give rise to a potential disability discrimination claim.

Will a worker or employee have a claim if they are dismissed or refused work?

How the courts will react to any cases of this nature, we do not yet know. As stated above, this pandemic is unprecedented and the case law on similar issues is extremely limited. If many companies do decide to adopt the ‘no jab no job’ approach though, there is expected to be an influx of unfair dismissal cases, discrimination on the grounds of age, sex, disability, religion, breach of human rights and other employment tribunal matters as a result of employees being dismissed and/or employees resigning over the policy or refusing to provide work.

Provided the organisation can show that they have reviewed the needs of the employee or worker against the needs of the business, then they may potentially be able to defend potential claims.

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