This is a question which has been hotly debated in the media and, so far, everyone has struggled to give a clear answer! Here is our attempt to shed some light on “no jab, no job” and related areas of concern which employers may face in the coming weeks.
This is likely to remain a contentious issue for a while to come, particularly because it is not known how long protection remains following the first vaccination (whether due to diminishing antibodies or the emergence of new variants), which means the UK government plans to launch a revaccination campaign from autumn or winter 2021.
- Must we require employees to have the vaccine?
- Can we require existing employees to have the vaccine?
- What about new employees?
- Can we require a vaccination as a condition of returning to the office?
- Can employers discipline employees for failure to take the vaccine?
- Is it unlawful discrimination to introduce a compulsory vaccine policy?
- Are there any other risks or difficulties with mandating the vaccine?
- What should we do if we want to implement vaccination as a condition of returning to the office?
1. Must we require employees to have the vaccine?
Since the start of the pandemic the media and legal commentators have highlighted the potential for lawsuits brought by employees and customers of a business which fails to protect them against contracting the virus. Could a firm be criticised and be legally liable for not having done enough to protect those on site by requiring employees who can get the vaccine to do so?
Under the Health and Safety Work etc Act 1974 employers have a duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees when at work. Those operating a customer-facing business will also owe duties to customers and others attending their premises, such as a shop. In the context of Covid-19, discharging these duties requires measures such as social distancing, cleaning and potentially face coverings.
An argument could be made that these duties might go so far (in some settings) as to mean an employer is required to mandate vaccines for those working on site. This is particularly the case if the work involves exposure to the vulnerable such as care homes.
However, we consider it unlikely at present that the health and safety duties on an employer would oblige it to make employee vaccines mandatory for staff. The UK government does not plan to make the vaccine mandatory and this is not a requirement that is imposed by the NHS on frontline workers. It would follow that employers in other less risky settings should not be held to a higher standard.
This is, nonetheless, an evolving area of law and the position may change in future.
2. Can we require existing employees to have the vaccine?
The question of whether employers can require employees to have a vaccine (as opposed to being compelled by health and safety law to do so) is more complex.
ACAS, who are always a reliable bellwether of best employment practice, has released guidance stating that employers should support employees in being vaccinated but that “employers cannot force employees to be vaccinated”. Whilst that is true in terms of the physical act of being vaccinated, which of course cannot be lawfully compelled as an invasive medical procedure, it may be different where employers impose a requirement to be vaccinated as a condition of attending the workplace.
Reasonable and lawful instructions
Employers have a right to issue reasonable and lawful instructions to their employees, which the employees are required to follow. Could it be said that an instruction “you must take the Covid-19 vaccine as soon as it is available to you” is reasonable and lawful?
- It will undoubtedly have a reasonable aim of seeking to ensure a Covid-free workplace. However, whether the means are reasonable and justify the aim is a more difficult question. Most obviously, this will only be practicable once the vaccine is more widely available. Once that point is reached, there may be a case for saying it would be reasonable to instruct employees working in care homes or hospitals with exposure to vulnerable adults (such as the older population who are more at risk of the virus) to get the vaccine. There is an argument that these jobs cannot be carried out safely without the significant reduction in transmissibility which the vaccine seems to cause. On the other hand, it is less likely to be reasonable for those who work without close contact to others or office-based workers working in the City who may not interact with the vulnerable from day to day. Professor Chris Whitty, the UK’s Chief Medical Officer, has said that he considers there for may be a “professional responsibility” on health care professionals to be vaccinated.
- Whether the instruction is “lawful” is a different question. Nadhim Zahawi, the UK’s vaccines minister, has been clear that the UK proceeds on the basis of consent and for that reason was sceptical about vaccine passports. Additionally, Article 8 of the European Convention on Human Rights (which does not directly bind private employers but would be taken into account by a UK court or tribunal in a legal claim brought against them) confers a human right to a private and family life which may – despite exceptions for public health measures – be relevant as an argument against issuing instructions. Additionally, the UNESCO Universal Declaration on Bioethics and Human Rights requires “free and informed” consent to any medical intervention. Whilst employers are not bound to follow this declaration, it would no doubt be persuasive authority when a court or tribunal is considering the overall fairness or proportionality of a compulsory jab policy.
On the other hand, there is a precedent for requiring vaccinations: doctors are required to have hepatitis-B vaccines in order to protect patients. Additionally, employees have their own statutory duty under the Health and Safety at Work etc Act 1974 to take reasonable care for the health and safety of employees and others who may be affected by their acts or omissions at work, and to co-operate with their employers to help comply with the organisation’s health and safety obligations. However, our view is that this requirement is too far outside of the scope of the right to issue instructions to existing employees – absent an express requirement in professional rules or the employment contract – in most cases.
We expect that government guidance will eventually be issued on this topic, but our view is that in the meantime employers should take an approach based on encouragement and should provide employees with enough information to make an informed decision. This will require carefully considered policies and procedures and clear internal communication strategies. Any argument that it is a reasonable and lawful instruction to require an employee to take the vaccine is at present unlikely to succeed given that it is not a requirement which is imposed on frontline healthcare workers.
If employers wish to mandate the vaccine, a very strong justification would be required where other safety measures alone are not sufficient.
Amending the employment contract
If the right to issue instructions to employees is not sufficiently broad to allow compulsory vaccinations (and our view is that it will not be in the vast majority of settings) then employers can consider amending the employment contract to introduce an express condition of the contract which requires vaccines to be obtained.
This is an area which is fraught with difficulty. An employee who is unwilling to take a vaccine is equally going to be unwilling to agree to changes to his or her contract requiring him or her to take the vaccine. An employer can seek to impose a change against the wishes of the employees. However, seeking to do this, and arguing that the employees continuing in employment amounts to accepting the new terms, is unlikely to be successful.
Our view is that dismissing an employee for refusing to agree to this contractual change is likely to be an unfair dismissal as the law now stands.
Additionally, including an express term in the employment contract does not clear other hurdles which employers will face in implementing a “no jab, no job” policy, in particular issues around discrimination and data protection issues arising from attempts to gather evidence of compliance with the policy. These are discussed below.
3. What about new employees?
The question of whether an instruction to an employee is reasonable and lawful does not arise if you have an express term of the employment contract which requires employees to carry out the act in question.
It is possible that an employment contract for a new employee could contain a provision requiring the employee to have had a vaccine and, going forward, to ensure that they take booster vaccines when they are offered. The UK government has been more receptive to this approach.
If this is lawful and effective, it is possible for the same to be required of existing employees, so long as the employment contract is validly amended to include an explicit term requiring vaccination. However, as discussed above, securing employee consent to the change will be difficult, and we currently think this cannot be imposed.
4. Can we require a vaccination as a condition of returning to the office?
As a purely practical matter, employers will in many cases be able to restrict the ability of employees to access their place of work. For those who have been working from home for the past year, employers might consider making a vaccine a condition of returning to the office. However, this approach is open to legal claims in the absence of a clear justification. Many pre-Covid employment contracts specify the office as the place of work which raises the prospect of employees demanding to be let in as a contractual entitlement.
If employers do feel it is necessary to require employees to have the vaccine before returning to the office, we recommend carrying out a risk assessment to demonstrate how the vaccine would mitigate the risk of Covid-19 in the workplace and review any plausible and reasonable alternatives.
The risk assessment should also look at the different vaccines being rolled out in the UK and consider how these work in practice. Although initial studies are promising, the extent to which the vaccine stops the vaccinated from transmitting the virus to others is still unclear. We know it supresses symptoms in the carrier but it does not necessarily prevent transmission entirely. Moreover, none of the vaccines are thought to be 100% effective. As the UK government has made clear, the vaccine should be considered as part of an overall approach to minimising risk rather than eliminating the virus entirely. Therefore, protocols dealing with infection prevention would continue to include other control measures, such as maintaining social distancing, wearing face coverings and washing hands regularly as appropriate, having regard to government guidance in force at the time.
5. Can employers discipline employees for failure to take the vaccine?
Failure to follow an employer’s reasonable and lawful instruction can be grounds for disciplinary action and potentially fair dismissal. However, this will not be fair if there is no right to issue such an instruction (which is most probably the case, as discussed above). Employers will be on much firmer legal ground if the requirement to have a vaccine is a term of the employment contract (as discussed above) or a professional requirement for the employee.
Even then, however, employees may well have good reasons for not wanting the vaccine. In our view, introducing disciplinary measures against employees who do not wish to take the vaccine is a high-risk approach which could leave employers open to breach of contract, constructive dismissal, and discrimination claims.
6. Is it unlawful discrimination to introduce a compulsory vaccine policy?
Whilst uptake of the vaccine amongst the population as a whole has – so far – been high, and perhaps higher than expected, recent surveys have suggested that a significant proportion of the public have expressed reluctance to get the vaccine, though the reasons for this attitude vary.
Some employees may have health issues which prevent them from taking the vaccine, and will therefore have potential claims for discrimination (e.g. on the basis of pregnancy or disability) if they are disadvantaged by “no jab, no job” measures.
Some employees may have specific reasons for not wanting the vaccine and this could leave employers at risk of claims of discrimination if they mandate the vaccine. For example, if employees are barred from returning to the office unless they have been vaccinated, this could mean certain groups of employees are at a disadvantage to their peers in the office. In particular:
- the vaccine is being rolled out to the older population first which means that young people will not be able to get the vaccine until later this year
- under UK government guidance, pregnant women are advised that, because the vaccines have not yet been tested in pregnancy, they should not routinely have the vaccine until more information is available
- some employees may have medical reasons for not getting the vaccine, for example if they have severe allergies to certain ingredients. Such medical conditions could constitute a disability
- some employees may hold religious and philosophical beliefs which justify their refusal to get the vaccine. For example, gelatine is often used in mass-produced vaccines which may mean that certain religious groups and vegan and vegetarian employees are unwilling to have it
- for a number of reasons, it appears that the willingness to take the vaccine amongst different age and ethnic groups has varied significantly and – though the “ethnicity vaccine gap” has narrowed slightly in recent weeks – there remains a large disparity across different ages and ethnicities in vaccine hesitancy. A recent ONS report has revealed survey data showing that 44% of Black or Black British adults surveyed reported vaccine hesitancy (compared to 8% of White adults), whilst adults aged from 16 to 29 years reported hesitancy at a rate of 16% (compared to 1% of those in their 70s). This raises the prospect of a potential indirect discrimination claim by employees on the grounds of race, age or potentially religion, which means that the policy – although apparently neutral – needs to be justified as a “proportionate means of achieving a legitimate aim”. Based on Supreme Court case law, the reason why there is a significant disparity in the uptake of the vaccine is irrelevant – the statistics evidencing the vaccine gap is sufficient.
7. Are there any other risks or difficulties with mandating the vaccine?
Mandating the vaccine could lead to health and safety risks as some employees may have an adverse reaction to a vaccine and therefore a potential legal claim. This might be the case, for example, if an employer’s compulsory vaccines policy did not make it clear that official medical guidance takes precedence and that those who have official advice not to take the vaccine are exempt from the requirement.
Equally, if employers require evidence that their employees have had the vaccine, this will come with very significant data protection risks. For this reason, it is likely (in the absence of an official government-backed passport scheme) that many employers who require compulsory vaccinations would not seek medical evidence from employees and simply take it on trust. Employers wishing to obtain vaccination evidence should carry out a data impact assessment which considers where the data will be held, the security measures in place and who has access to the data.
8. What should we do if we want to implement vaccination as a condition of returning to the office?
We recommend any employers seeking to implement a policy based on vaccinations take the following steps:
- be clear on the justification of the policy and whether it is needed: the overwhelming majority of Covid fatalities are amongst the old and those with underlying health conditions – if your staff or customers on your premises do not contain many individuals within the most vulnerable categories then the level of risk may not be such as to justify a compulsory vaccine requirement
- monitor the evidence emerging from real-world studies: the effect of the jab on transmissibility would be highly relevant to whether a compulsory jab policy is justified. If it does not strongly ensure that vaccinated staff are less able to transmit the virus, but merely supresses symptoms, then the overall benefit to restricting access to only the vaccinated is less
- monitor government guidance, including what is happening with care home and frontline staff and whether any vaccine passport scheme will be introduced
- carry out a risk assessment and consider whether the costs may outweigh the likely benefits
- consult with employees, including by sharing the draft policy and the risk assessment, and listen carefully to any concerns, whether these relate to the general scheme or particular concerns raised about their individual circumstances
- consider why other measures – such as frequent testing or social distancing – are not sufficient in your particular circumstances
- seek professional advice on the scientific, legal, and practical issues where necessary, and always in good time before implementation.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.