Written by: Ashley Harkus, Managing Partner and Head of Employment Law at Newport and Pontypool based Solicitors firm Everett Tomlin Lloyd and Pratt
The question of whether a requirement to have a COVID vaccination may become a standard term of new employment contracts has become a much debated issue recently with the Justice Secretary, Robert Buckland, suggesting that it may well be legal in the future for companies to insist on new employees having the COVID inoculation.
Some employers, including a national plumbing chain, have already announced that they intend to change their contracts for new starters to include a vaccination clause once the vaccine rollout has been completed and that some employers are considering changing contracts for existing staff to insert a clause that that it’s a requirement of the job to be vaccinated. This raises the issue of whether mandatory vaccination clauses could lead to the risk of tribunal claims for discrimination or unfair dismissal, and inserting a standard clause is something employers should think very carefully about says Ashley Harkus , Managing Partner and Head of Employment Law at Newport and Pontypool based Solicitors firm Everett Tomlin Lloyd and Pratt.
At present the Government's stated position is that nobody can be forced to be vaccinated although they should be encouraged to do so. The UK conciliation service ACAS echo this issue in their guidance although suggests that an instruction from an employer to accept a vaccination, in particular in the health and care sector where risks are seen as higher, could be seen as a reasonable request for employees or a reasonable requirement of employment as it may mitigate risk.
Many workplaces already have particular safety practices employees need to comply with falling short of vaccination. Employers already have a duty to provide a safe working environment and must risk assess the workplace and working practices and show that they have considered and implemented steps that reduce risk of COVID infection for employees that cannot work from home. The issue is whether enforcing mandatory vaccination for employees would be seen as a proportionate and reasonable response to achieve that aim or whether it goes too far.
A blanket policy of mandatory vaccination would be fraught with issues. Some employees, for instance, may have a medical reason why they cannot accept the vaccine, some may have religious, ethical, health or safety concerns.
While not all beliefs will be protected, as some may be thought to be unreasonable or not widely held, there are a number of religious and non-religious based beliefs that are protected. Veganism, for example, has been held in court to be a protected belief. If a vaccine contains animal derivatives can an employer require somebody to act contrary to their beliefs or religion and have the jab to keep their job or to be able to accept a new one?
What about an employee who is advised by their doctor that they should not be vaccinated because of health issues, pregnancy or who is breastfeeding which wouldn’t make them suitable under current guidelines?
It seems unlikely that an employer would be able to dismiss in those circumstances or reject their employment application unless they first considered other options and the impact of the policy on certain groups or individuals without running the risk of litigation or a perception of unfair treatment within the workforce.
Employers should seek advice before introducing policies refusing to employ someone who isn’t vaccinated or allowing for a dismissal for a refusal to change current contractual terms. They should look to see if there are other measures to accommodate new and existing employees with a valid concern. As an example, when and if restrictions are relaxed, could an employer have a policy that only the vaccinated should be allowed back into the workplace rather than working from home or could they individually risk assess whether mask-wearing, social distancing and other protective measures minimise the risk effectively so that exceptions could be made.
It seems clear that employers run the risk of unfair dismissal or discrimination claims from existing staff if they rush to impose a blanket vaccination policy without working through the consequences as, on the face of it, dismissing people because of their health conditions, religious beliefs or even general beliefs is likely to lead to the risk of a claim.
How the courts will deal with the factual and public policy implications remains to be seen. It may be that a vaccination policy that takes into account each employee's individual circumstances and allows for exceptions or alternative steps to mitigate risk short of vaccination may be more difficult to challenge. Employers should take advice and consult with their staff or unions before making any hasty changes as there will be a balance to be struck between ensuring safety and protecting individual freedoms.