Employment Law: COVID Vaccinations and the Workplace

As we start to see an exit out of the COVID 19 pandemic, the issue of vaccinations has become a big discussion point. Many are excited about regained freedoms and lower risk as a result, some are sceptical about the effect and concerned about them becoming a requirement in law.

There has been widespread discussion in the media about the concept of “no jab, no job”, and whether or not employers could require staff to be vaccinated in order to start a new job, or even continue in an existing one.

This is against a background of the government making it clear that they have no plans to legislate for vaccinations to be compulsory in the UK. The obvious point about them being de facto compulsory for foreign travel is still a major one, but that is not the purpose of this article, save to say that in many countries, having a vaccine (eg for Yellow Fever) is compulsory to gain entry.

The starting point is that there is nothing in law that directly prevents this policy, it is the indirect legal consequences that need to be considered. The debate at present on “no jab, no job” seems to be binary, with those either fully in favour or resolutely against it. The reality of the position is much more nuanced and complicated, and any employer who is considering the position should have the following in mind:

1)The Sector they work in

An example that has been discussed, is the care sector. Employees in that sector interact with vulnerable individuals, and the risk to those people is much greater than in the wider economy. An employer that insisted on a vaccination for new staff in those circumstances would have little risk. Existing staff are more problematic, and I deal with that later.

2) Age Discrimination

If a requirement for a vaccine was needed, at present, it risks being discriminatory on grounds of age. ie younger people are not able to comply as easily.  That might be objectively justifiable under the law, but an employer would have to demonstrate that point. Using the care home example, they would probably be able to do that, in an office this is less likely.

3) Disability Discrimination

Employees may have a genuine medical reason ie a disability under the Equality Act, why they cannot have the vaccine. To make their employment condition on it could be discriminatory for reasons relating to their disability.

4) Maternity Discrimination

At present, the vaccine is not given to pregnant women. The requirement could therefore discriminate against that group, or even those women planning to have a child.

5) Unreasonable variation of Terms of Employment

Existing employees are already employed on agreed terms. If an employer wants to suggest that a vaccine is a job requirement, that will mean a variation in those terms. An unreasonable variation of terms without consent, could amount to a repudiatory breach of contract and justify the employee in resigning and claiming Constructive Dismissal. Employers should think very carefully about imposing such requirements, unless the variation can be justified. Eg on safety grounds.

6) Unfair Dismissal

If an employer dismisses an employee for a refusal to have the vaccine, they could face an Unfair Dismissal Claim. To qualify, staff must have been employed for 2 years. If an employer is to justify the dismissal as fair, they have to show that it was for a fair reason and they also have to show it was reasonable. This reasonableness test in law is that the dismissal must have fallen within the “band of reasonable responses”. That is an objective test based comparable employers of similar size, resources etc

7) Refusal to allow vaccine

One further area that has not been considered, is employers that take an anti vaccine stance themselves. An employer may issue an instruction that staff are to not have the vaccine. This would almost certainly breach the duty of trust and confidence that employers owe their staff, and could give rise to constructive dismissal claims. Dependent on sector, there may be direct risks associated with this stance, and health and safety implications.

Please always take advice on any staff related issues.

By Alex Jones, Managing Director, 365 Employment Law
365 Employment Law Solicitors
Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk