“Covid-19: Can employers force staff to have the vaccine?” Victoria von Wachter writes for Employment Law Journal

1 February 2021

 

Following the news that Pimlico Plumbers is planning ‘no jab, no job’ contracts for staff, Victoria von Wachter considers whether employers can insist that employees have the Covid vaccine for Employment Law Journal. This article was originally published by Employment Law Journal and is available to view here.

 

Since the spring of 2020 more than 10 key pieces of legislation concerning Corona Virus have been issued by the Government, the most recent being the latest lockdown legislation effective from 6 January 2021.

This does not include a huge number of Codes and Guidances that are a natural follow-on from such legislation.

The current rules under the latest piece of legislation require people to work from home if they can. For those unable to do so, there are a number of steps that an employer should take to maximise safe working, such as:

  • Routine and regular cleaning of premises with antivirals
  • Ensuring social distancing and wearing of masks
  • Travelling at times when public transport is less busy
  • Reducing face-to-face contact

Furthermore, individuals who are self-isolating due to showing symptoms or being vulnerable cannot be required to attend the workplace. Such employees should either be furloughed or benefit from sick pay. Compelling such individuals to attend the workplace is an offence. 

Vaccine Hesitancy

We have seen the mammoth effort made by scientists hard at work to develop vaccines to tackle COVID 19 by developing existing work on similar viruses.

There has been a significant body of resistance to the vaccine in general, some of it no more credible that the alien abduction theories and tin foil helmet brigade familiar to us all, but some which hold a genuine fear about the speed with which the vaccine was released onto the market and the unknown nature of the long-term effects of using it. Many people still remember the dreadful Thalidomide scandal which destroyed Distillers Ltd and affected so many lives – that drug having been the subject of insufficient testing. It is not suggested that these two cases are comparable, but it helps us to understand why some people appear to resist what should be a life saver.

Uncertainty about onward transmission

Due to the urgency of producing a vaccine that is safe to use there have been areas of research – which normally form part of the accreditation of drugs – that have had to be temporarily abandoned in order to get a safe and effective vaccine to the people who need it. One of these areas is the question of ongoing contagion by immune persons. There is simply no way at the moment in which it can be assessed whether or not a vaccinated person, whilst immune themselves, can carry the disease and pass it on to others. This situation is not uncommon as the ‘flu jab’ that many receive each winter is known to give varying resistance to influenza but does nothing to stop an immunised person from spreading the bug.

Deborah Dunn-Walters, professor of immunology at the University of Surrey, is unequivocal about how people should behave once vaccinated: "there are a couple of reasons for that," she says. "One is, you're not going to be fully protected. And another is there is no evidence as yet that having had the vaccine will stop you getting the virus and passing it on."

The other and very important aspect of the vaccination programme is that it promotes the ‘herd immunity’ that has been mentioned in the early days of the pandemic. If enough people are immune to the disease either by natural means or through vaccination, then the risk of the disease gaining a foothold is hugely reduced.

With this is mind the question of whether employers can require an employee to be vaccinated becomes more a matter of protecting that person rather than necessarily protecting the workforce in general from onward transmission of the disease.

Key workers

The Government has not to date issued any statutory guidance to employers about the enforceability or otherwise of the COVID vaccination programme, focussing instead on its advantages and the priorities for vaccination. Chapter 14A of the Government ‘Green Book’ – a guide to COVID vaccination – makes it clear that the emphasis is on protecting staff performing key tasks such as care home workers and front-line medical practitioners, i.e. doctors and nurses.

It states that the objective of occupational immunisation of health and social care staff is to protect workers at high risk of exposure who provide care to vulnerable individuals. Although there is as yet no evidence on whether vaccination leads to a reduction in transmission, it is a small effect that may have major additional benefits for staff who could expose multiple vulnerable patients and other staff members.

More importantly and without being too cynical about it, vaccinating key workers means that they are less likely to become ill and can therefore be available for the vital function that they perform. The National Care Association is currently seeking legal advice on whether care workers could be forced to take the COVID-19 vaccination, where it has emerged that up to a fifth of care home staff are refusing to be vaccinated. 

Could a vaccine obligation be a reasonable instruction?

Although the government is not compelling anyone to have the Covid jab, certain employers may feel strongly enough to require their employees to be vaccinated. Any organisation operating in the key areas of care and medical intervention will be attracted by a vaccine that can stabilise its workforce and make it resistant to the very disease that it is there to fight.

Given that the elderly and people already suffering from and hospitalised with the disease pose the greatest risk to professionals working to care for them, it could be argued that employers were doing no more than exercising their duty of care under the Health and Safety at Work Act 1974 when offering vaccination to these employees.  There have been no cases of claims arising out of employers requiring employees to receive the necessary immunisation when seconded to geographical areas with a high risk of certain diseases such as cholera, yellow fever etc.

It is therefore arguable that in these industries it could be viewed as a ‘reasonable instruction’ by an employer for its employees to receive the vaccine, not only to protect each individual employee but also in the (as yet unverified) hope that there will be some effect on onward transmission of the disease. Clearly this argument will not work where employees could just as easily work at home, thus reducing the risk of infection or of onward transmission.

What claims might an employee bring?

There are a number of reasons why an employee could resist having to follow this ‘reasonable instruction’. If an employee were disabled in such a way as to compromise his or her immune system, then it is unlikely that they would be considered a suitable candidate for vaccination in any event.

An employee could have religious objections to being vaccinated.  If for instance the vaccine were not Halal or Kosher then strict Muslims and Jews would have some difficulty in accepting vaccination whilst maintaining their religious integrity. Forcing a vaccination on them could constitute unlawful discrimination. 

There are individuals who hold a genuine belief that this type of medicine is wrong and that to be forced to receive it would breach that genuine belief.  Compulsion to receive the vaccine in this case risks being considered unlawful discrimination.

If mandatory vaccination is effected by an employer, the next issue that arises is where there could be differential treatment between vaccinated and non-vaccinated employees.  For instance, where a non-vaccinated employee was furloughed on 80% of pay whilst a vaccinated employee worked and received full pay.  This in itself could give rise to a claim of unfair constructive dismissal for breach of the implied term of trust and confidence. This is on the basis that there is, as yet, no legal compulsion to receive the vaccine and so people refusing are entitled to not be treated less favourably than those who have received the vaccination.

It could also give rise to a claim for indirect discrimination, where an employer imposes a provision criterion or practice – in this case enforced vaccination – that disadvantages a person from a particular protected group. In this case it is possible that age, disability, gender and possibly religion/belief would be the protected characteristics that could attract such a claim.

Contract changes

Recent newspaper reports have suggested that Pimlico Plumbers is considering rewriting contracts for new starters and possibly existing staff to require them to be vaccinated against Covid. The company seems to have fallen in love with the idea of litigation after its previous pummelling in the Court of Appeal over employment status. It is difficult to see how such a requirement could be contractually enforceable without offending against employment legislation (see above), especially as plumbers are not caring for the sick or elderly.

GDPR

Were employers to require evidence or confirmation of vaccination, this could raise GDPRbreach issues. The business would have to be able to show that it was legitimate and necessary to collect, hold, store and process this data.

A risky strategy

In summary, and given the current knowledge about efficacy and wider effect of the vaccine, it would seem that the disadvantages of enforcement would outweigh the advantages except in very specific circumstances such as key medical workers and carers.


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