Blog - 16/02/2021
The Covid vaccine and the ability for an employer to make it mandatory in the workplace
The Government’s vaccine roll out programme is well underway. According to the Gov.uk website as of 13 February 2021 just over 14 million in the UK have received the first vaccination and just over half a million have had a second dose.
The dosing regime is in accordance with the orders of priority as advised by The Joint Committee on Vaccination and Immunisation: Advice on Priority Groups for Vaccination report dated 2 December 2020 (the JCVI Report).
For those of us who are avid Radio 4 listeners, there has been a noticeable rise in the question being asked of Government ministers and scientists: can (or should) an employer force their employees to have the vaccine? On 13 February 2021 Justin Webb on the Today programme interviewed Professor Anthony Harnden who is Deputy Chair of the JCVI and he was asked about the suggestion that some care home workers were refusing to have the vaccine. It was suggested that nationally, take up of vaccine by care home workers was only about 66% which Professor Harnden described as ‘far too low’. He confirmed that it is known now that the Oxford/AstraZeneca vaccine prevents transmission of the virus in about 2/3rds of cases and as such it played an important role in protecting the vulnerable residents that those staff care for. When asked if it should be made mandatory for care home staff to have the vaccine, Professor Harnden advocated the education of staff and the power of persuasion rather than a requirement for them to be vaccinated which may not be appropriate when balanced against the fact that most of the residents have now been vaccinated and are therefore protected against severe disease.
But the question remains; can a care home (or for that matter any other employer) require their staff to be vaccinated?
Requiring Staff to Have the Vaccine
This is not currently mandated by the Government (contrary to some media reports). The Public Health (Control of Disease) Act 1984 gives the Government power to make regulations to protect public health. Section 45C(1) provides:
“The appropriate Minister may by regulations, make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidents or spread of infection or contamination in England and Wales (whether from the risks originating there for elsewhere).”
That right however, is expressly curtailed by the provisions of Section 45E which states that this does not include requiring a person to undergo ‘medical treatment’ which under the Act includes vaccination.
There have been no amendments to those provisions under the Coronavirus Act 2020. Nor is there any provision under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (made under Section 45R of the Public Health (Control of Disease) Act 1984, which permits mandatory vaccination.
The more interesting question that arises, is whether or not employers can impose an indirect requirement for vaccination.
This could be achieved for example by:
- refusing to allow staff to undertake certain types of work without a vaccination;
- excluding staff from premises unless they have been vaccinated;
- subjecting staff to disciplinary procedures for failing to be vaccinated.
Saga, the travel group, targeting the over 50s, has announced that it will insist that all of its customers must be vaccinated against Coronavirus before they embark on one of its cruises. Saga’s standard terms and conditions now include a specific clause relating to Covid-19 vaccinations which require evidence of a full course (double dose) of vaccinations at least 14 days prior to the departure date. Any failure to provide that evidence will be treated as a cancellation by the customer. However, it has stopped short of requiring its staff to be vaccinated, instead, it was reported in the FT on 1 February 2021 that the company felt that for staff “…the idea of compulsion would not feel right” and is instead addressing the issue with staff on the basis of a compulsory period of quarantine for 2 weeks before the ship leaves port and a requirement for a negative test before boarding and regular testing of crew whilst on board.
There are a number of relevant considerations when exploring the extent to which an employer may lawfully introduce a vaccine requirement for staff before working which, in practice, would amount to an indirect compulsion to obtain a vaccine.
Reasonable Instruction to Have a Vaccine?
The first consideration is why is the employer requiring staff to have a vaccine in order to go into a particular part of the building or before they can undertake certain work etc.
It may be that in certain industry sectors (care workers, NHS workers, GP surgeries and other clinical settings) it would be a reasonable management instruction by the employer to instruct certain staff to have the vaccine but all cases will be decided on the particular circumstances and ‘justifications’ advanced by the employer. This will include the following considerations:
- What is the risk the employer is trying to mitigate?
- For whom is the employer trying to mitigate risk? The employee or the customer/client or both?
- Are the reasonable steps which may be required different for different groups? If so, why?
- Can those risks be mitigated by other factors (such as Covid secure workplaces)?
- If not, why not?
- Does a vaccine requirement ‘plug the gap’ where other measures can’t mitigate the risk? For example, if the Oxford/AstraZeneca vaccine can prevent transmission in 2/3rds of cases, is that good enough? What if the Pfizer or Moderna vaccine is the one being offered; what is the data about reducing transmission for those vaccines?
Each of the above questions have to be considered in the light of the ‘Covid Secure’ workplace measures that all employers are now all familiar with (which Sir Patrick Vallance was reported as saying at the start of December 2020 are likely to remain in place until at least, this coming winter) and the status of the vaccine data on protection against transmission at the time that a decision is being taken.
If on the basis of this analysis, it is established that having a vaccine is a reasonable management instruction that the employee has unreasonably refused to comply with, then alternative arrangements (redeployment and/or workplace absence) must be considered and only then could a case be made for dismissal (subject to a fair process being undertaken in relation to that dismissal) on the basis of a refusal to follow a reasonable management instruction on the basis of ‘some other substantial reason’ (often referred to as SOSR).
So if management have determined that it is a reasonable management instruction to require staff to have the vaccine, what if an employee refuses?
This will depend on the reason for the refusal and whether that refusal was reasonable or not.
In addition to the question of a basic unfair dismissal claim which only protects those with over 2 years’ service, there are a number of potential discrimination arguments which apply from day one of employment, which would have to considered carefully by employers in each individual case.
Vaccines are not being offered privately or on an ‘on demand’ basis at the moment and are currently being offered only to the older age ranges. In the circumstances, it would discriminate against younger workers if a vaccine requirement was imposed at a time that younger staff were unable to obtain them. Age discrimination can be justified if it is proportionate means of achieving a legitimate aim which means that employers who impose a requirement but who cannot access vaccines for staff ‘on demand’ will have to identify their legitimate aims (by reference to the questions listed above) and be confident that any detriment suffered by younger workers was proportionate for the purposes of pursuing that legitimate aim.
Obviously for those who are offered the vaccine (front line health and care staff) or when it becomes available ‘on demand’ to all, age discrimination would not come into play because younger workers would be able to access it.
The Medicines and Healthcare products Regulatory Agency (MHRA) guidance issued on 11 January 2021 stated that anyone with a history of allergic reactions to the ingredients of the vaccine should not receive it.
Whether or not an individual with such a history falls into the definition of having a ‘disability’ for the purposes of the Equality Act 2010 will depend on whether or not that condition has a substantial adverse impact on their day to day activities (walking, talking, eating, sleeping, socialising etc). It may well do and there may be other circumstances in which a person’s disability means they are advised against having the vaccine because it poses a risk to their health.
In addition, an employee may suffer from very real mental health issues about needles, vaccines or any type of medical intervention. Mental impairments can fall within the definition of a disability if it satisfies the broad test outlined above.
In the circumstances, some individuals may refuse a management instruction to have the vaccine and assert that the requirement to have vaccine puts them at a disadvantage in comparison to someone who does not have their disability and the impact of the requirement and the consequences that follow their refusal, indirectly discriminates against them.
Indirect discrimination can be ‘justified’ if the employer can show that it is a ‘proportionate means of achieving a legitimate aim’ and this will require a further analysis of the rationale for and reasonableness of the management instruction and an assessment of whether or not the discriminatory impact is a proportionate response. This will require close consultation with the employee and is likely to require the consideration of medical evidence and the involvement of occupational health.
The JCVI Report stated that: “There are no data as yet on the safety of Covid-19 vaccines in pregnancy, either from human or animal studies. Given the lack of evidence, [the Committee] favours a precautionary approach, and does not currently advise Covid-19 vaccination in pregnancy or for those who are planning a pregnancy within 3 months of the first dose”.
As such, the current Government Guidance is that those who are pregnant should not routinely be vaccinated (here). Those who are breastfeeding however can receive it.
In the circumstances, someone planning a pregnancy, may refuse the vaccine and in the light of the Government Guidance it would not be unreasonable to do so. If the consequences of that refusal was that the individual suffered some disadvantage, the employee may claim that that amounts to indirect sex discrimination. Again, it is possible to justify indirect sex discrimination if the employer can show that it is a ‘proportionate means of achieving a legitimate aim’ and the same considerations will apply as for indirect disability discrimination.
However, for employees who are pregnant, until such time as the Government guidance changes for the taking of the vaccine whilst pregnant, anyone who treated unfavourably because of their pregnancy, would have a claim for pregnancy discrimination. Unlike indirect sex discrimination, it is not possible to ‘justify’ pregnancy discrimination and therefore those who are pregnant who refuse the vaccine will have to be treated differently and redeployed if the employer risk assessment determines that they should have the vaccine to continue to do the work for which they were employed. Airlines have managed such processes for many years with pregnant staff who may be restricted from flying at certain stages of their pregnancy and a similar approach will have to be taken by all employers.
Religion or Belief
Like sex and disability discrimination, employees are protected against indirect discrimination on the basis of their religion or beliefs (which includes philosophical beliefs like Socialism or Marxism) and as such there is a risk of an assertion of claim if an employee is disadvantaged in comparison to someone who does not share their religion or belief. Again, it is possible to justify indirect discrimination on the grounds of religion or belief, if the employer can show that it is a ‘proportionate means of achieving a legitimate aim’ and the same considerations will apply as for indirect sex and disability discrimination.
There may be those that object to taking the vaccine on religious grounds. There have been some reports in the press that some of the vaccines use pork derived gelatin as a stabiliser in vaccines and this gave rise to concerns amongst the Jewish and Muslim community that there would be objections to taking the vaccine on those grounds. Pfizer, Moderna and AstraZeneca have been certified as gelatin free so there are vaccines available which could address such a religious concern.
The question of the protection for those with ‘beliefs’ which prevent them from taking the vaccine can be complex. There are a significant number of individuals who describe themselves as part of the ‘AntiVax’ movement and they may well describe that as a ‘belief’ that should protect them from any indirect discrimination.
The relevant test for a protected belief however is a high bar. It has to be genuinely held, not simply be an ‘opinion’, must be in relation to a weighty and substantial aspect of human life and behaviour, must have cogency, seriousness, cohesion and importance, it must be worth of respect in a democratic society, not incompatible with human dignity or conflict with the fundamental rights of others and it must have a similar status or cogency to a religious belief.
There is some debate still as to whether or not a ‘belief’ based on science is protected (such as Darwinism or in this case, Anti-Vax). In 2010 the Government Equalities Office stated that the Government does not consider views or opinion based on scientific or political theories can be considered akin to religious or philosophical beliefs and it was not the intention of this legislation that such beliefs should be covered. However cases since then suggest an expanding view of what is a philosophical belief and the Tribunals have found that veganism, anti-foxing hunting and the higher purpose of public service broadcasting were all protected.
Again, the claim asserted would be an indirect discrimination claim and as such it is possible to justify if the employer can show that it is a ‘proportionate means of achieving a legitimate aim’ and the same considerations will apply as for the other types of protection listed above.
The Flip Side
So far, consideration has been given to staff refusing the vaccine and how employers manage such staff where they consider it to be a reasonable management instruction that they should be. But what about staff who advocate for their employers to implement a compulsory vaccine requirement or are uneasy about attending work without the rest of the workforce being vaccinated.
Sections 44 and 100 of the Employment Rights Act
Sections 44 and 100 of the Employment Rights Act 1996 protect employees where they suffer a detriment (section 44)(for example a deduction of wages) or dismissal (section 100) where they have taken action (such as removing themselves from the workplace) where, in circumstances of danger, which they reasonably believe to be serious and imminent, they take appropriate steps to protect themselves or others from danger.
The reasonableness of the employee’s belief is firstly a subjective test of what the employee believed and then an examination of whether or not it was reasonable for them to believe that. This means that each case will be fact sensitive and will include an examination of other precautions taken by the employer. It is likely however that where an employer has undertaken a full risk assessment and determined staff vaccinations are not a reasonable requirement and they have offered further protections for employees who have a concern about a particular perceived danger, the employee will have difficulty in asserting a claim.
Employee are also protected against detriment or dismissal for making a ‘qualifying’ disclosure. A qualifying disclosure is a disclosure of information, which, in the reasonable belief of the worker, is in the public interest and tends to show some wrongdoing or failure to comply with a common law, contractual of statutory duty (such as breach of health safety protections). The employee has to believe what they are saying is true (even if they are wrong) and it has to be objectively reasonable (even if it turns out to be wrong).
Again, where an employer has undertaken a full risk assessment and determined staff vaccinations are not a reasonable requirement and they have offered further protections for employees who have a concern about a particular perceived danger, it may be determined that the employee has not made a qualifying disclosure but care must be taken to address their concerns fully and provide full and clear explanations.
On balance it is likely that it will only be few employers in specific clinical or care home settings who could ever reasonably answer those questions listed above such that a requirement to vaccinate would be a reasonable management instruction. It will however be a developing picture as better data becomes available, vaccines are more available ‘on demand’ and Covid secure workplace measures are relaxed. But comparisons will always be drawn with the ‘pre-Covid’ era and the risks employers were willing to tolerate before mind sets were so fundamentally changed by the onset of the pandemic; ‘flu jabs’ were commonly offered by employers for staff to take on a voluntary basis but some staff and customers were very vulnerable to flu. That did not however lead to questions about compulsory flu vaccinations.
If you have any queries about this topic, please contact Linky Trott or any member of the Employment team.
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