The rapid roll out of Covid-19 vaccinations offers some light at the end of the tunnel after a year of restrictions, economic hardship and illness, and has been welcomed by most of the population. However, some remain concerned about the speed at which the vaccines have been developed. Surveys have reported that perhaps a third of UK citizens would be reluctant to receive the vaccine for various reasons including the potential unknown, long-term side-effects.
Employers are eager to get back to the “old normal” as soon as possible. The key to doing so will be widespread vaccinations. However, the UK Government has confirmed that it has no intention of making vaccination compulsory. Some employers have asked whether it would be possible for them to make vaccination compulsory for their employees. The short answer from a legal perspective is, “probably not”.
Companies have a legal obligation to ensure that the workplace is safe for all employees. Arguably, that could include ensuring that staff are not placed at risk by working alongside colleagues who have not received the vaccine and could be infectious.
It has been reported that some travel companies including Australian airline Qantas and cruise operator Sage will insist that all travellers must provide proof of vaccination in order to travel with them. The justification is the protection of their other passengers and crew members. Other service providers may adopt the same approach. Customers, of course, can choose whether or not to travel with those companies
Businesses will have no legal right to force employees to receive a vaccine but could argue it was a “reasonable management instruction” or make it a contractual obligation, which, for existing staff, would likely still require their consent. Both steps would likely be met by resistance. It is not yet clear to what extent vaccination will reduce the risk of transmission as opposed to serious illness. It is not even mandatory – other than in a few limited exceptions – for front line NHS staff to receive other vaccines and there are no signs yet that the Covid-19 jab will be either. This raises the question as to whether it would really be reasonable for other employers to make vaccination compulsory on health and safety grounds. However, it could be necessary because the employee needs to travel in their role to countries which require proof of vaccination.
Before dismissing an employee for refusing to receive the vaccine, an employer should consider whether there are fair reasons for the dismissal and also whether there are reasonable alternatives to dismissal for that employee. This may include remote or home-working or changes of role. As ever, the circumstances of each case should be considered carefully.
Dismissals or detriments, such as demotion or pay reduction, for refusal to be vaccinated also carry risk of discrimination claims. Some individuals may be reluctant to receive a vaccine due to concerns about other underlying health conditions. If these conditions amount to disabilities under the Equality Act then pressurising employees to receive the vaccine could lead to disability discrimination claims. Other employees may not agree to be vaccinated due to specific religious beliefs.
But what about a philosophical objection to vaccination? In January 2020, an Employment Tribunal held that ethical veganism was a protected philosophical belief, and some vegans hold concerns about vaccines due to the traces of animal protein which they often contain, although the three Covid vaccines currently approved for use in the UK do not contain any animal-derived ingredients. Whether or not being an “anti-vaxxer” could amount to a philosophical belief that is protected from discrimination under the Equality Act 2010 has not yet been tested in court. It would need to meet the legal test of being a coherent belief worthy of respect in a democratic society, compatible with human dignity and which does not conflict with the rights of others.
Even if a requirement to be vaccinated, or vaccine-related dismissals, were legally permissible, such steps could have a negative impact on employee relations.
In light of these various complex issues, most employers may prefer to adopt the safer policy of actively encouraging staff to receive the Covid-19 vaccine, alongside promoting other public health guidance to minimise the spread of infection, akin to the common approach for facilitating employees to have annual flu jabs. Education and communicating with employees will be key to foster confidence in the vaccine as well as good employee relations. This approach will help avoid the legal and ethical minefield of enforcing vaccinations among an already anxious workforce.