Thinking of a ‘No Jab No Job’ Policy? Tread Carefully.

Alec Colson, Head of Employment Law at Luton-headquartered law firm Taylor Walton, explains the grounds an employer might have for mandating employee vaccination and the circumstances where potential employees could bring discrimination claims against them.

As increasing numbers of employees become eligible for a vaccine and a return to the workplace draws nearer, some employers have stated it is their intention to require employees to be vaccinated against the coronavirus as a condition of employment.

Whilst there is currently no legal provision to address this issue, the Chief Medical Officer has stated that health professionals have a professional obligation to take the vaccine and the case for care home staff to be vaccinated appears to be overwhelming.

To require an employee to be vaccinated raises a number of legal issues and any employer considering such a move will need to tread carefully and take into account their own business requirements before making a decision.

Steps to reduce workplace risk

Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks. Also, under section 7 of the HSWA 1974, an employee has a duty to co-operate to enable a company to comply with any statutory requirements including steps to reduce workplace risks.

Although employees will need to be assured they are working in a safe environment, it’s unlikely to extend to employees being legally required to take the vaccine in all business sectors.

Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks.

It is expected that guidance will be offered on what measures an employer may be required to take, but initially the Government decided it was a matter for employers, whilst now there is discussion around vaccines becoming compulsory for staff in certain sectors, or the need to be tested regularly.

The meaning of ‘reasonableness’ in the health and safety legislation is likely to depend on the circumstances of the employer and the services it provides.

For example, an employer in the social care sector requesting its employees to take the vaccination could be argued to be a ‘reasonable management request’, as refusing it could pose severe risk to fellow employees and patients, threatening the business.

Dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.

The position in other sectors is likely to be less clear and in any event, an employer should proceed with caution before deciding to dismiss. Employers will need to consider alternatives, which may include moving the employee to another role involving less contact with clients or other employees.

Some employees may argue they will not pose a risk if they work from home, and given that for many this has been the situation recently, this argument may carry some force in certain situations.

Employers will need to consider alternatives, which may include moving the employee to another role involving less contact with clients or other employees.

Employers might consider making the vaccine a condition of employment for new employees, but this is not without its problems as potential employees can still bring discrimination claims. Therefore an employer must carefully consider the risks, which include but are not limited to:

Religion and Belief

It is unlikely that an ‘anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. Although an employee may believe vaccines are harmful, legislation requires the belief to have a certain level of seriousness and importance, worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Not all vaccines list their ingredients, and if they include gelatine or use it in the production process an employee with certain religious beliefs or vegans may have grounds for refusal.

Disability discrimination

If an employee’s doctor advises them not to take the vaccine, an employer’s requirement for them to be vaccinated may amount to disability discrimination. An employee’s fear of needles may also amount to a disability and the employer would need to consider whether it could provide alternative working arrangements.

Age

The current government vaccination programme is mainly based on age, so a requirement to have a vaccine currently indirectly discriminates against younger employees on the basis that younger employees are unlikely to be able to obtain a vaccine in the near future.

Therefore, an employer would  need to objectively justify why it is not employing staff without the vaccine due to the fact that individuals have not been able to obtain the vaccine because they are in a lower priority group due to their age.

It is unlikely that an ‘anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010.

Sex discrimination

Public Health England’s current advice states: “women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine”.

Therefore, a requirement to take the vaccine for a pregnant employee, or an employee planning a pregnancy, may amount to indirect sex discrimination.

Data protection

Personal data collected in connection with an employee’s vaccination records will be ‘sensitive personal data’ or ‘special category’ personal data and will need to be processed in accordance with the data protection legislation.

The Information Commissioner’s Office (ICO) website has a vaccination section that provides useful guidance for employers. There are 10 conditions for processing special category data in Article 9 of the UK GDPR.

In conclusion

Outwardly, an employer’s requirement for an employee to have a COVID vaccine appears a ‘reasonable instruction’ for their own safety and that of others in the work place.

However, the position is complex and raises numerous legal issues which will need to take into account the requirements of the employer and the individual circumstances of the employee, shaped by ongoing advice from the Government.

The vaccine is a huge step forward, but should be considered the next chapter in the pandemic story and sadly not the end. Employers will need to tread carefully, whilst encouraging staff to take the vaccine when it becomes available to them and if doubts persist, seek expert legal advice.