As the rollout gets underway for the Covid-19 vaccine, we are seeing a wide variety of questions arising about the COVID-19 vaccination and how it sits alongside employment rights.
To some extent, these questions are somewhat of a moot point at this early stage. The vaccine rollout is currently aimed at those who are most at risk. In a great deal of cases, they have already retired from working life. Private vaccinations are not currently available.
But, as the nation aims to go back to “normal”, we have to consider the possibility that access to certain venues or a requirement to travel may be conditional upon having a vaccination. That could be equally true of some workplaces.
Our Managing Partner, Jodie Hill was interviewed on BBC world news and here is what she said about the issue: click here to watch the video
Below are some of the most common questions we have been asked recently, as a result of the interview and some public announcements of employers looking to actively encourage and some force the vaccine on staff, and our thoughts at the date of writing.
Can employers force employees to be vaccinated?
In short, no. Employers can’t legally force employees to take the vaccine; they can’t actively jab a vaccine in your arm or obtain a court order to force an employee to be vaccinated. It is also likely to be seen as a breach of employees’ human rights and there are possible criminal implications to consider as well.
However, there are no laws stopping employers from encouraging and incentivising employees to be vaccinated, for health and safety reasons. Their argument here is likely to be that it’s essential to ensure that employees are safe in the workplace.
More accurately, this is more likely to manifest as employers asking workers not to refuse a vaccine if offered to them by the NHS because they are in the high-risk categories.
What may happen is that, moving forward, employers will make this a term in the contract of employment or add a policy to their handbook which deals with the company’s position on vaccines. This is certainly something to be mindful of as employees may find themselves indirectly agreeing to have the vaccines through one of these documents if they do not read them carefully.
Jodie Hill, our Managing Partner recently commented for BBC online about the new “no jab, no job” policy for Pimlico being announced which involves a new contract with a vaccine requirement and a policy supporting this. This approach should be taken only with the support of legal advice due to the risk of claims against the company for those who refuse and are disciplined or dismissed due to non-compliance.
There is certainly an argument from an employer’s perspective that a refusal of an employer’s request to accept a vaccine could be a failure to follow reasonable management instructions. This is extremely fact specific though, and each employee must be dealt with on a case-by-case basis having regard for their reasons for refusal and the role they do. This is more likely to be a legitimate argument if the employees cannot work remotely and cannot socially distance in the workplace; if the employee can or is working from home, there would be no real impact on the wider workforce if they were not vaccinated so it’s less likely to be seen as a reasonable request.
There is also the question of reasonableness given the vaccine may not prevent you from carrying COVID-19. Whilst there may be less transmission when people are vaccinated, currently, the NHS still recommends maintaining social distancing measures and government guidelines on handwashing and masks etc, even where someone has been vaccinated.
Of course, this may stop being the case, and as we follow a roadmap out of lockdown, it may be the Government’s stance is that vaccination does incur further rights and liberties than non-vaccination. Our blog on vaccine passports is here.
Where does the law stand on vaccines being mandatory for different roles?
The EqA applies in all workplaces, so where someone has a legitimate reason to refuse (eg. pregnancy or disability) then the law protects them from less favourable treatment (which would include dismissal).
Generally, there will be those who can, for reasons associated with protected characteristics, refuse vaccines. Refusing those persons access to work could then be discriminatory. However, this is extremely fact-specific, and each employee must be dealt with on a case-by-case basis having regard for their reasons for refusal and the role they do.
However, where the refusal isn’t related to a protected characteristic, are not protected by the equality act. They could be dismissed or disciplined for a failure to follow reasonable management instructions, especially where those persons are in contact with the public or can’t work from home. The question then would be was it a fair reason to dismiss in all the circumstances.
What are employers supposed to do where they have a duty of care to users?
In addition to common law duties, the Occupier’s Liability Acts impose duties on business owners to take reasonable steps to ensure that any visitor will be reasonably safe in using the premises for the purposes the visitor is invited. It is quite clear that this would cover the duty to ensure that customers do not face an increased risk of contracting the virus by attending a venue, whether for an event or for any other reason.
It’s about balancing the duty of an employer to protect the individuals using a service (eg. customers and staff), alongside the health and safety of other employees, against discrimination issues. It may be that where people refuse vaccines for legitimate reasons, the employer may still be able to look into changing their job role, in order to balance that obligation they do have to service users and the public, for example, that person may be moved into a different non-public facing role. Depending on the role and the reason for the refusal the employer may be able to objectively justify any potential discrimination on grounds and have a defence to any allegations but this is very fact-specific.
What happens if employees work aboard and there’s a requirement in that country or from the airline to have a test or vaccine?
If it is essential to travel to that country to fulfil the role, it could be reasonable for the employer to insist on a vaccination where either it is necessary to have a vaccine or a test due to the airline requirements or by law in that country.
If the employee refuses, and cannot therefore fulfil the requirements of their role, the employer may be entitled to consider redeployment into an alternative role, or even dismissal if foreign travel is a fundamental requirement of the job.
If, following the business trip, the employee was then asked the quarantine by the company, it would be sensible to offer to pay them for this time if they cannot do their role from home.
If the employer asks you to have a vaccine as a requirement of your role, should they pay for this?
A demand to make an employee get a private vaccination (if they become available) would arguably be unreasonable unless the employer proposed paying for this. This should be something companies think about when deciding whether to request all staff to have the vaccine. This may form part of an incentive plan or policy internally.
If you refuse, and the employer will not permit you to work, should you be paid?
Typically, if an employee is able and willing to work and an employer refuses to allow them to do so, the employee is still entitled to be paid as normal. But, in this hypothetical scenario, where an employee has refused a vaccine against an employer’s request, especially where this has been agreed with them in a contract or otherwise, there is an argument that an employee wouldn’t be entitled to pay. This is because an employer may be able to argue that, in fact, that employee is not able to work as it’s not safe for them to do so. Obviously, this isn’t an argument we have seen play out yet.
In order to ensure that any decision not to pay employees in these circumstances amounts to a lawful deduction, it should be set out in a written agreement, as the law requires it to be agreed in writing if you are going to deduct from wages. Without this clause in a contract or a separate written agreement, employers should proceed with deductions of this nature with caution, as it could amount to a breach of contract and could result in claims against the company for those lost wages. In turn, it could also amount to a fundamental breach of contract entitling them to resign and claim constructive unfair dismissal, where they have more than 2 years’ continuous service.
If you are considering making any deduction of this nature, it is essential to take legal advice prior to any deduction being made so as to minimise the risk to the business.
Can employers dismiss you if you refuse the vaccine?
Some employers could say that, if an employee doesn’t get vaccinated once the opportunity is offered to them, they will be dismissed for failure to follow reasonable management instructions. There’s nothing to actually stop the dismissal taking effect but it’s not without risks, particularly where the employee has more than 2 years’ service and/or can allege discrimination.
Subject to discrimination issues (see refusal for legitimate reasons below), an employee may be able to argue that such a dismissal would be unfair on the basis that it would not be for a fair reason and is not reasonable in all the circumstances, because:
- Employers simply cannot compel employees to take vaccinations. They can only request this unless expressly agreed in their contract or otherwise.
- It could be contrary to the entitlement to private and family life under the Human Rights Act 1998.
- Employers may have to evidence that they looked into all reasonable alternatives including remote working and redeployment prior to any dismissal.
If an employee has more than two years’ service, that argument of unreasonableness would give rise to a claim of unfair dismissal, which is arguably a strong one. Again, we haven’t seen this play out in the Tribunal yet and are unlikely to do so for at least another year or two depending on where it is heard due to delays in the Tribunal. These types of cases are likely to be very fact-sensitive and legal advice should be sought prior to any dismissal taking place to ensure the risk to the company is minimised.
Unfortunately, workers and self-employed contractors may see their contracts being terminated where they fail to comply with a “no jab, no job” policy, and they would be unable to claim unfair dismissal as a result of their status.
What if you refuse for legitimate reasons?
A person may refuse the vaccine because (for example), they’re pregnant, looking to get pregnant, breastfeeding, because of a disability or allergy. If an employer then refuses to allow an employee to work because of this or dismisses them, it could be discrimination contrary to the Equality Act 2010, provided they can evidence a protected characteristic. However, in such circumstances an employer may be able to argue a defence to claims of this nature, on the basis that they had a legitimate reason for a vaccine requirement (provided they do of course!).
An anti-vaccination belief, whilst not a protected characteristic itself, could potentially amount to a philosophical belief under the Equality Act 2010, thereby providing protection to the individual. Whilst this is not an easy argument, it is undoubtably one which may arise due to the controversial nature of the vaccine which attracts strong and varied views. However, to qualify as a philosophical belief which the Equality Act 2010 protects, such beliefs must be worthy of respect in a democratic society. It may well be that a Tribunal will not uphold that “Anti-Vaxx” views meet this threshold.
Vaccine hesitancy, however, is not a protected characteristic and therefore if a person refuses just due to personal concerns but not arising from a protected characteristic, any resulting detriment or dismissal wouldn’t be discriminatory (but a dismissal could give rise to unfair dismissal, as above).
If requesting vaccines does become the norm, employers will have to consider each refusal on a case-by-case basis, considering what protected characteristics may be at play.
In each case it is sensible to conduct a risk assessment for each person and assess the risks both ways before making a decision.
Vaccination policies could therefore be indirectly discriminatory unless they can be objectively justified.
It is also worth noting that many people will only be workers (rather than employees), like at Pimlico, but that they are still protected by the Equality Act 2010 if they have a protected characteristic.
What happens if you refuse to have a vaccine, not for legitimate reasons, that could limit people’s access to different places or does that impact their other rights?
There is an argument that if it was the Government putting those restrictions in place, then that’s a really authoritarian approach. But then, the Public Health (Control of Disease) Act 1984 specifically precludes any government regulations from ‘requiring a person to undergo medical treatment’ which includes vaccinations. So the Government will never be able to force anyone to be vaccinated, but that’s not to say that they can’t tie certain access to vaccination.
Article 8 of the European Convention of Human Rights may form the basis for a claim that enforced vaccinations are a breach of the right to autonomy and bodily integrity. But this is an untested area.
GDPR defines as “special category data” any details about the personal medical health of an individual. There may be public health justifications that employers could advance for storing this information, but “this will need to be reflected in privacy policies once a decision is made, to proceed in this way.”
Its entirely up to service providers if they want to limit access for health and safety reasons, and vaccine passports might be a good way to do that. But, at the same time, they can’t be discriminatory in their approach unless they are satisfied they have a good defence to this, so there will always be nuances to the argument and it will always ultimately come down to reasons for refusal.
At the moment, the Government guidance isn’t really clear on what a service provider or an employer can or cannot say, so it means that the liabilities and risks would sit with the service providers and employers if they choose to go down this road. At present, there is limited guidance we would recommend waiting for this before making a decision.
What about data protection?
Employers need to think about updating the data protection policy if they intend on passing data to third parties for the vaccine and storing test results making it clear what will happen and who will see that data.
If everyone has a vaccine, do companies still have to comply with risk assessments and government guidance on social distancing?
Employers should update their risk assessments to account for the option of having a vaccine when this becomes relevant and should determine what measures are necessary where any employee refuses. They should also use this as an opportunity to mitigate any risk of potential direct or indirect discrimination claims. Employers should continue to act in accordance with government guidance even where everyone had received a vaccine. It doesn’t negate their responsibilities, not least because the vaccine doesn’t completely prevent the spread of the virus. It is all very early days, and this could change but, at the date of writing, we encourage employers to comply with their duty of care and to ensure the workplace is a safe place to work.
Can you be dismissed for being publicly against the vaccine?
It depends on the company, and it depends on the individual and the content they write publicly. If an individual has personal concerns and asks legitimate questions, then this is unlikely.
However, if an employee is an “Anti-Vaxxer” (someone who actively campaigns against the vaccine, or spreads conspiracy theories about it), and the company is public facing or in the health industry, that company may perhaps be able to dismiss that person due to reputational damage or because their campaigning is inconsistent with the values of the company. Employers should be mindful that this could amount to a philosophical belief (depending on the individual’s level of commitment to the belief, amongst other things), which means that any dismissal is not without risks of allegations of discrimination.
Employees should be mindful of what they write on social media to ensure it doesn’t breach their company’s social media policy or potentially cause damage to the company’s reputation, regardless of the views and beliefs.
Can you have paid time off for vaccination?
Arguably, if an employer is saying that vaccination is a condition of attending work, then yes; they would have to properly facilitate that and allow an employee an opportunity to have the vaccine during work time. This would ordinarily form part of the agreement to have the vaccine and is something which employers should think about when drafting policies if they are trying to encourage their staff to have the vaccine.
Ordinarily though, as a medical appointment, it’s likely an employee would need agreement from their employer to take the time off and, without contractual or policy wording to the contrary, this would be unpaid. The starting point is to check your contract and staff handbook to see what the rules are around medical appointments and time off. If the documents are silent, we suggest coming to an agreement with your employer prior to agreeing to have the vaccine so that both parties are clear prior to the time off.
However, we would also encourage employers to consider whether they can be more flexible on their usual medical appointment policy; vaccination appointments can be last-minute. If an employer is encouraging vaccinations, they may also want to consider paid time off for this as a part of an internal policy.
What if the vaccine makes you sick? Will you be entitled to sick pay?
In the unlikely event that a vaccination makes an employee unwell (just as a flu jab may make a person briefly unwell), that employee would be entitled to sick leave and sick pay, in accordance with their usual entitlements. It is important to check the relevant policies and establish if they have been updated.
Employers may want to vary this and enhance any entitlement where they have asked the employee to take the vaccine.
If you become severely disabled because of the vaccination, you can claim compensation through a government scheme. Details below.
Vaccine Damage Payments Act 1979 – https://www.legislation.gov.uk/ukpga/… Vaccine Damage Payments (Specified Disease) Order 2020 – https://www.legislation.gov.uk/uksi/2… Industrial Injuries Disablement Benefits: Technical Guide – https://www.gov.uk/government/publica… Vaccine Damage Payment Scheme Claim Form – https://www.gov.uk/government/publica…
What happens where employees’ views are split; some want the vaccine and others don’t?
Whilst there is a risk of the vaccine causing personal divisions in the workplace, this wouldn’t be the first time that has happened in recent memory.
Brexit evoked stronger opinions than perhaps anything in recent years, and employers were generally able to navigate that successfully from an HR perspective. It is important to stress to staff that everyone is entitled to a view, but that the manner in which that opinion is communicated needs to be appropriate and respectful of others.
Pro-active employers may choose to issue communications to their people to this effect to proactively manage the potential issue.
Can employers force COVID-19 testing?
This is a little more clear-cut; employers are likely to be able to enforce regular testing on employees. There are far less obvious circumstances where testing could be refused on the basis of a protected characteristic, and testing is much less invasive than a vaccine. This is assuming that the testing kits are accessible and affordable; if it’s a huge expense for employees, its less likely to be a reasonable request.
If employers insist on mandatory and regular testing, it would be advisable to consider covering the cost of these as they cannot use the NHS testing unless the employee has symptoms.
What has the Government said?
The Government hasn’t yet said anything about employers forcing or obliging employees to have the vaccine. It will be interesting to see if there is any guidance published on this. We suspect many employers will wait for this. Equally, Trade Unions haven’t yet made their position known or started to run arguments in favour of or against mandatory vaccination.
It is going to be an interesting few months or years as we see vaccinations against Covid-19 become more widespread. The cases surrounding dismissals, discrimination or detriments, where employees refuse, will take few years to be decided – we’re definitely still going to be talking about COVID-19 in 2022 and beyond!
What enquiries are Thrive getting at the moment?
The main questions from businesses are about whether they can make vaccines mandatory in workplaces for new starters and add this to contracts and the practicalities of rolling this out in policies and through consultations for existing staff.
From individuals, we’re seeing questions about concerns people may lose their job if they refuse the vaccine, or refuse to be tested or can’t wear masks, and what protection there is for them. And the answer to that isn’t straightforward; it depends on why they refuse and whether they have a legitimate reason which could amount to discrimination and what the employers objective justification is for their request.
By Alicia Collinson, Tom Stenner-Evans and Jodie Hill
If you are thinking of encouraging, incentivising or asking staff to sign a new contract requiring the vaccine, speak to us first for straight-talking advice and guidance on this complex and ever-changing area.
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