Having the jab is a “no brainer” said Charlie Mullins, the Chairman of Pimlico Plumbers who plans to insist that the Company’s workers are vaccinated. This new policy, he says, will be written into re-issued employment contracts, workers may be dismissed if they don’t comply and un-vaccinated job applicants won’t be recruited. The Sunday Times reported yesterday that The National Care Association is seeking urgent legal advice because between 6% and 8% of its 1.5 million adult social care workers in England are refusing the inoculation. But what about those who have good reason to opt out of the immunisation programme? What employment rights come into play for them?
Whilst writing approximately 3.8 million people in the UK have received a first vaccination against COVID-19. So far this has been rolled out to the most vulnerable groups and the government hopes to vaccinate 15 million people from the priority groups by the middle of February. Estimates suggest it may take until the autumn to roll this out to all adults in the UK.
The government has made it clear that there is no legal requirement for individuals to have the jab and they are free to make an informed decision. Whilst many are desperate to receive immunity from the disease, there are a number of reasons that people may not agree to be vaccinated. Such groups include those with disabilities, allergies, suppressed immune systems, pregnant women and breastfeeding mothers. In addition, those with religious or philosophical beliefs may refuse. For example, ethical vegans may object if the vaccine contains animal products.
What are the employment law implications for employers and employees?
The roll out of the vaccine provides light at the end of the tunnel for many, particularly employers who now have hope of resuming normal operations as we move towards the summer. But what if an employee refuses to receive the jab? Can the employer start disciplinary proceedings or refuse the employees return to the workplace? Can pay be stopped and can an employee be dismissed?
There is likely to be significant debate in the coming months and it is an issue that has yet to reach the employment tribunal. It will be interesting to hear how this may be interpreted by a judge because there may be sympathy for an employee bringing a claim for refusing to have what is effectively a minor medical procedure. Equally the greater good of our society and the need to stop Covid killing thousands more might make judges view such a proposition as perfectly reasonable. We are in different times. Who knows?
Could an employee be dismissed for refusing to have the vaccine?
Whilst an employee is obliged to comply with reasonable management instructions, we simply don’t know if it is legal to insist that their workers receive the jab, particularly when their reasons relate to health or religious beliefs. The moral and ethical ramifications are another story altogether.
An employer may consider disciplinary action if they consider an employee is unreasonably refusing the vaccine. ACAS guidance also suggests that such action could be justified in some circumstances. Whether the employee has a claim will be very case sensitive. For example, if an employee’s role can be conducted safely, or they can be redeployed without being vaccinated this may not pose a problem. Conversely if the job entails direct contact with vulnerable patients or customers whereby the refusal to be vaccinated could pose a risk, this may be different because health and safety comes into play. So an employer will need to weigh up the employee’s reasons for refusing the vaccine versus the need for them to have one to perform their role without health and safety implications. It almost certainly would be easier for an employer to argue that a worker with a public-facing job should have the jab rather than someone who has no wider contact with the clients. But then again what about protecting their workforce internally? It’s a minefield.
Pimlico Plumbers have indicated that they will change their employment contracts to compel their workers to receive the vaccine. However, this would involve a change in terms and conditions of employment which cannot be done overnight. The employer would need to consult with employees with a view to obtaining their consent. Alternatively they could impose the change without agreement or dismiss and offer new terms of employment to the employee. Both options can be risky for an employer, in terms of a breach of contract claim, particularly when the change is so controversial. But it is possible if done right.
We may expect further government guidance on this in the coming weeks. Meanwhile employers are advised to consult with their employees, listen to concerns and respond reasonably.
A sensible route for an employer may be to introduce a non-contractual policy requiring employees to comply. However, this would not give them the option to fairly and reasonably discipline or dismiss an employee who objects to being vaccinated.
For now, in short, if an employee is dismissed for refusing to receive the jab, they may have a claim for unfair dismissal.
What if there are health or religious reasons for refusing the vaccine?
If the refusal to be vaccinated relates to a medical issue, maternity reasons or belief, the worker may be protected from discrimination under the Equality Act. Similarly, age discrimination could arise whereby only those vaccinated can return to work but those of a certain age have not yet received it due to availability or suitability. Workers, contractors and employees are protected by discrimination laws, as are job applicants.
Any other risks for the employer?
A further consideration may arise where an employer insists on the employee receiving the vaccine which leads to an adverse reaction. This could even lead to personal injury proceedings against the employer.
Breach of contract claims or unlawful deduction of wages claims may also arise if an employee’s pay is affected because they are not permitted to attend work until they are vaccinated.
Data protection issues may also come into play in terms of processing data regarding their employees’ vaccination records.
Another consideration is that the mandatory requirement to be vaccinated may also be regarded as a breach of the Human Rights Act in terms of an individual’s privacy.
The point needs to be tested. If Mr Mullins does have to take this to the Supreme Court then at least we will all be wiser on this one.
This blog is by Caroline Oliver, Senior Solicitor, didlaw.