By Sue Whitbread
As the UK is firmly in the grip of the second wave of COVID-19 and every news channel and paper is dominated with tracking the number of people vaccinated, many employers are considering what the vaccine means for them, and, whether they can legally require their employees to have the vaccine. In this article, Elizabeth McEneny, Senior Consultant at CM Murray LLP, leading specialist employment & partnership law advisors, highlights the issues for business owners and managers to consider.
Without legislative change it would prove risky for employers to mandate vaccination for all workers – especially as scientists do not know whether the vaccine prevents people from passing the vaccine onto others.
There are a myriad of legal issues which need to be considered before formulating any policy in relation to vaccination of staff, many of which I deal with below.
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks. Employers also have a common law duty to take reasonable care for the safety of their employees. Therefore, the vaccine should be considered when undertaking COVID-19 risk assessments, including the measures that might be taken where an employee decides not to get vaccinated.
In respect of healthcare workers and other high-risk staff such as carers, (where up close and personal care is the main purpose of the role), it will in most cases be relatively straightforward to show by way of risk assessment that being vaccinated is the most reasonably practical way of mitigating the risk of COVID-19.
Employees have a duty at common law to obey the lawful and reasonable orders of their employer and could technically be dismissed for failing to comply with a reasonable instruction to have the vaccine. For most health workers, it is likely that an instruction to have the vaccine would seem reasonable. The same is not true for most other employees. It will be much harder for employers of office workers to show that an instruction to have the vaccine is reasonable. Asking employees to be vaccinated as workers are proximate in large open plan offices, which increases the risk of the spread of infection, may not be straight forward, especially for highly profitable companies, where they could provide more space per worker but choose not to maintain or increase profits, or where homeworking is a viable option.
In many jobs, pre COVID-19, international travel was viewed as a crucial part of the role, and possibly a contractual condition. It is possible that countries may refuse entry for unvaccinated individuals. On first flush, it would seem less risky to mandate vaccination for such employees. However, as lockdown has shown, it has proved possible with technological advances to carry out these roles effectively from the UK. Therefore, instructing such an employee to have the vaccine may not be reasonable in all the circumstances.
Employers may wish to introduce a contractual requirement for their employees to have the vaccine. Many employees would probably object to such a requirement, either due to their concerns about the safety of the new vaccine (whether well-founded or not) or in many cases general opposition to being compelled by their employer to undertake a minor medical procedure. If agreement cannot be reached the Employer would have two options available to them – either unilateral imposition of the change or terminating and offering re-engagement on the new terms. Both options carry significant legal risks.
The COVID- 19 Secure Guidelines note that employers should be mindful of the particular needs of those with protected characteristics who are protected by discrimination law.
Employers are at risk of indirectly discriminating against employees with certain protected characteristics where they treat vaccinated staff differently from unvaccinated staff. Different treatment could include refusing unvaccinated staff entry to certain parts of the workplace, not allowing them to travel abroad for business, refusing them entry to certain roles or denying them sick pay if they are off sick with COVID -19 symptoms.
As priority for the vaccine is largely based on age, any differences in treatment between vaccinated and unvaccinated staff could be indirectly age discriminatory, unless the treatment could be objectively justified.
Pregnant women have been advised not to have the vaccine. Therefore, employers should ensure that there are suitable exceptions to any requirement to vaccinate, to avoid discriminating on this basis. This will be a tricky area to navigate, as many women choose not to tell their employer of their pregnancy until 3 months gestation.
Where an employee’s refusal to be vaccinated is down to a protected characteristic, and results in detrimental or disciplinary action, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest. Discrimination claims have no financial cap, therefore, if a claim is successful any damages award could be significant.
In many workplaces a mandatory vaccination policy would need to be balanced against the possible infringement of Article 8 of the Human Rights Act 1998 – right to respect for private and family life. A mandatory vaccination policy could be an invasion of an individual’s privacy. This will be especially pertinent where there are less personally invasive ways minimising the risk of transmission within the workplace.
Finally, there is a small risk, of an employee having an adverse reaction to the vaccine for which the Employer may be found to be liable.
Care is needed
An employer considering imposing a mandatory vaccination policy must tread very carefully. A blanket approach to all employees is not recommended. To avoid upset and potential claims being brought discussions should be held with the employees and/ or any relevant union about the desire to activate such a policy and the reasons why it is considered necessary, with an opportunity for the employees to have their say on the matter, whilst making clear that employers cannot force staff to have the vaccine. Such an approach would comply with ACAS guidance. Any such discussions should also deal with possible consequences for failure to comply. If a mandatory vaccination policy is implemented, employers should carefully consider alternatives to dismissal, should an employee refuse to comply such as relocating staff to lower-risk roles or allowing homeworking.
Vaccination is currently not the golden bullet. Even if the majority of the workforce are vaccinated there will be individuals who cannot be vaccinated and therefore COVID – 19 secure working practices will have to be maintained for the foreseeable future.
Elizabeth McEneny is a Senior Consultant at CM Murray LLP with a cross over employment, partnership and commercial disputes practice. Elizabeth’s client’s include, multi-national corporates, partnerships, c-suite private individuals and partners, she advises on a range of matters including claims for harassment, breach of contract and unfair dismissal, partnership disputes, shareholder disputes, and misconduct investigations. Elizabeth has particular expertise advising on the exit of senior executives advising on restrictive covenants, the operation of remuneration, especially in relation to exercise of discretion, malus and clawback provisions and indirect restraints of trade.